The letter to Senator Akaka identifies seven integrity issues that compromise the MSPB's ability to fairly uphold the merit principles.
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The Coalition For Change, Inc. (C4C) P.O. Box 142 Washington DC 20044 Tanya Ward Jordan L.O.R., B, A., M.S. Founder Philip Taylor B.A., M.P.A. President Willie Berry, B.S. Treasurer Michael Castelle, Sr. Diversity Chair Milton Hill B.S., M.A., M.P.A. Outreach Chair Cecil Paris PMP, B.S. Management and Organization Chair Paulette Taylor A.A., B.A. Civil Rights Chair www.coailtion4change.org [email protected]1-866-737-9783 June 4, 2012 Senator Daniel K. Akaka (D-HI), Chairman Subcommittee on Oversight and the District of Columbia Senate Committee on Homeland Security and Governmental Affairs 141 Hart Senate Office Building Washington, DC 20510 Dear Senator Akaka: The Coalition For Change, Inc., (C4C) a non-profit civil rights group that combats and exposes racial discrimination and reprisal in Federal employment, respectfully requests that your subcommittee consider and investigate the issues raised in this letter. On March 20, 2012, your committee conducted “A Review of the Office of Special Counsel and Merit Systems Protection Board” at a hearing, in which you had two witnesses, Special Counsel Carolyn Lerner of the Office of Special Counsel and Chairman Susan Tsui Grundmann of the Merit System Protection Board (MSPB). Unfortunately, we were not aware of this important oversight hearing until after the fact. Therefore, we did not attend the hearing nor did we have an opportunity to formally present our concerns, especially regarding the MSPB. Our immense interests stems from the fact that we have several members with appeals before the MSPB and one member who has a federal lawsuit against Chairman Grundmann in U.S. District Court in San Diego. Because many of our members currently have cases pending before the MSPB or have had cases before the MSPB, the C4C has gained valuable insight and knowledge into the MSPB’s personnel, practices, procedures and performance. The following issues detail our concerns and raises serious questions about the MSPB’s ability to “serve as the guardian of Federal merit systems and to protect the rights of individuals within those systems.” Therefore, the C4C formally request that your subcommittee determine whether the MSPB is fairly and impartially carrying out its statutory responsibilities to adjudicate employee claims and appeals. Integrity Issue 1: MSPB Vice-Chairman, Anne M. Wagner, Failed to Disclose Involvement in an Employment Discrimination Complaint. Prior to Ms. Anne Wagner’s nomination and confirmation as Vice-Chairman of the MSPB, she was named as a responsible management official in an employment discrimination lawsuit. Specifically, as General Counsel of the U.S. Government Accountability Office (GAO) Personnel Appeals Board, Ms. Wagner was the subject of a workplace discrimination lawsuit filed in federal district court in Washington, D.C. The suit, 1 Williams v. Dodaro, (Civil Action No. 1:07-CV-1452), brought by a senior GAO 1 The defendant was Gene Dodaro, the U.S. Comptroller General and head of the Government Accountability Office (GAO). While employed at GAO Wagner served for a time as Williams’ direct supervisor. In a Memorandum Opinion by the court, dated September 17, 2008, Wagner is alleged to have “‘physically confront[ed] and loudly threaten[ed] Williams in her office on June 30, 2006 ... ‘regularly disparaged’ Williams’s job performance during discussions with her co-workers and ‘routinely questioned’ those co-workers concerning Williams’s whereabouts during work” (p.8). Notably, the court found in favor of the plaintiff (Williams) and denied agency’s attempts to quash the complaint. C4C
trial attorney, alleged “age, race, and sex discrimination, retaliation, and a hostile and
abusive work environment.” Although the case was resolved earlier this year, C4C
believes Ms. Wagner’s continued presence as MSPB’s Vice-Chairman constitutes a
conflict of interest and raises a serious concern as to whether she can fairly and without
prejudice adjudicate cases of discrimination that may come before the Board.
Additionally, in light of this matter, the C4C seeks an investigation as to whether Ms.
Wagner was forthcoming and/or misled the White House and the Congress regarding her
role in Williams v. Dodaro.
Integrity Issue 2: MSPB Often Gives Erroneous Information to Appellants.
MSPB has provided erroneous information to appellants, particularly those who
challenge prohibited personnel practices in a “pro se” status. In the case of Dennis T.
Moore v. Defense Logistics Agency (CH07528310465), MSPB gave erroneous
information regarding its ability to “reopen an appeal case”.2 In a letter dated July 1,
2011, MSPB’s William D. Spencer, Clerk of the Court, informed Mr. Moore who was
seeking appeal of his removal from the Department of Defense – that “the Board’s’
regulations do not provide for your request for reconsideration of the Board’s final
decision.” Again in January 18, 2012, MSPB’s Mr. Spencer informed Mr. Moore, that
“There is no right to any further administrative review in this matter.” C4C finds that
the MSPB routinely abuses its discretion when responding to pro se appellants’ requests
to reopen appeals where the decisions are clearly erroneous. Rather than be effective
guardians of justice, MSPB often chooses to lessen its workload by telling pro se
appellants they have no further administrative recourse.
As with the Moore case, MSPB also gave appellant Edgar D. Lee, Gulf War Veteran
erroneous information. When Lee appealed to the MSPB for a hearing to address his
reasonable accommodation request, Administrative Judge (AJ) Sarah Clement first
directed Lee to settle his complaint. Later, when Lee found the agencies settlement
unacceptable, AJ Clement asserted MSPB had no jurisdiction in the matter of Lee vs.
Department of Commerce DC-0752-09-0893-I-1) 3 The guidance of MSPB AJ Clement
appears erroneous given that the MSPB has already ruled that it has jurisdiction in
similar cases, where an employee who is absent from work for medical reasons asks to
return to work with altered duties and the agency denies the requests to return with a
reasonable accommodation under the Rehabilitation Act, and a reasonable
accommodation was available. Senator Akaka, in your opening remarks at the Senate
Oversight hearing of the OSC and MSPB you stated: “As a senior member of the
Veteran’s Affairs Committee, and a veteran myself, I believe one of the federal
2 Morris W. Moss, Jr. v. Department of the Air Force (CH-1221-97-0313-B-1) specifically states:
"The Board has authority to reopen, on its own motion, appeals in which it has rendered a final
decision. 5 U.S.C. section 7701 (e) (1) (B); 5 C.F.R. section 1201.118. The Board may reopen a
closed appeal even after the Federal Circuit has issued a decision reviewing the Board's final decision
in that appeal. (Anthony v. Office of Personnel Management, 70 M.S.P.R. 214, 218 (1996). 3 In this case, Lee vs. Department of Commerce (DC-0752-09-0893-I-1), Lee, appealed to the MSPB
after Commerce officials failed to provide him with reasonable accommodations. As substantiated by
the Office of Special Counsel, Commerce officials knowingly exposed Lee to asbestos which
contributed to his illness. Lee appealed with MSPB under constructive discharge and sought an MSPB
Hearing. MSPB denied the Gulf War Veteran a hearing --citing no jurisdiction. Subsequently, on
March 15, 2010 appellant Lee wrote to Ms. Grundmann, who never responded to his concerns.
Letter to Senator
Akaka (p.3)
June 4, 2012
government’s most sacred responsibilities is to care for our nation’s warriors after they
return home. Our dedicated service members should not be worried about finding
employment or returning to work after the completion of their service. I expect protecting
veteran’s rights to be among the highest priorities of these agencies.” The C4C could not
agree with you more. Therefore, we petition your committee to look into how MSPB
mishandled the case of Gulf War Veteran Edgar D. Lee.
Integrity Issue 3: MSPB Fails to Fairly Adjudicate Claims.
Rather than fairly adjudicate claims, MSPB judges often ignore evidence that would
substantiate an appellant’s claim. In the case of Dennis Moore, Mr. Moore appealed to
the MSPB after Department of Defense officials reportedly coerced him into firing a
veteran, and a minority employee named Jim Espiritu. According to Mr. Moore, when he
refused to sign a management developed statement indicating that Mr. Espiritu was not
discriminated against, Mr. Moore was subsequently removed from the federal service.
Coincidentally both Mr. Moore’s and Mr. Espiritu’s MSPB appeals went before the same
Presiding Official, Joan M. Pucillo. Nevertheless, the MSPB failed to find nexus in
Moore’s and Espirtu’s firings or even question Administrative Judge Pucillo’s “no
nexus” decision. The cases, Dennis T. Moore v. Defense Logistics Agency
(CH07528310465) and James Richard Espiritu v. Defense Logistics Agency
(CH07528110272) should be examined and investigated by your committee. For despite
the MSPB’s no-nexus ruling, one case would not have happened without the other.
[Notably, Mr. Moore has a pending requesting of Chairman Grundmann and the MSPB
to reopen his appeal.]
Integrity Issue 4: MSPB Has Failed to Consider Attorney Examiners’ Decision
Records to Demonstrate Bias Against Appellants.
In Kevin Sullivan v Department of Transportation (SF1221100137W3), MSPB ruled
against the appellant, who asserted that he researched the administrative judge’s
decisional history from 2007 through 2010 and that the information allegedly showed
that the administrative judge is biased in favor of government agencies. In its final order
dated April 3, 2012, the MSPB chose not to consider the alleged bias of the
administrative judge. In its ruling MSPB justified its position by asserting: Because the
information on which the appellant’s claim of bias is based was available to him prior to
the commencement of the proceedings below, and he has not shown why he did not
present it below, the Board need not consider it.
Integrity Issue 5: MSPB’s Justification for Summary Judgment — to “Speed Case
Processing” — Is Not An Appropriate Reason.
It has been brought to our attention that MSPB supports proposed Whistleblower
Protection Enhancement Act legislation that would eliminate current MSPB hearing
procedures and replace them with summary dismissal proceedings. We feel this
legislation, if enacted, is unfair, unwarranted and would deny appellants due process. The
solution to backlogs and delays should not be instituting summary judgment where
employees are denied the opportunity to make their case in a hearing. C4C asserts the
desirability of case finality should never outweigh the importance of due process and
reaching the right result (a result based solely on all material and relevant evidence.)
Letter to Senator
Akaka (p.4) June 4, 2012
Many within the civil rights community, including C4C, finds it unthinkable that a bill
which is to enhance protections for whistleblowers would give more power to the MSPB.
Integrity Issue 6: MSPB’s Fails to Protect Against Prohibited Personnel Practices.
Congress established the MSPB to serve as a guardian of Federal merit systems, assuring
that the Federal workforce is managed in accordance with merit system principles and free from prohibited personnel practices. Yet, Administrative Judge (AJ) Clement –
who provided our C4C member Mr. Lee with erroneous information - now questionably
presides over the MSPB appeal of Arthuretta Holmes-Martin (Holmes-Martin vs.
Sebelius, Secretary-U.S. Department of Health and Human Services (HHS) DC-0752-
12-0438-I-1.) 4 Ms. Holmes-Martin, a pro-se litigant, reports that AJ Clement ignored
her motions seeking additional time to respond; yet, granted HHS (Defendant) additional
time to respond and led agency officials to specific case law. Despite Ms. Holmes-
Martin’s request for another AJ because of AJ Clement’s apparent bias, MSPB has
refused to respond to Ms. Martin’s request for another Judge. The Holme-Martin case
demonstrates how the MSPB often favors management and fails to serve as the “vigorous
protector of the merit system.” Furthermore, the case of Carmelita Pope vs. U.S.
Department of Commerce hearing (Docket No.: DC-0432-10-0873-I-2) demonstrates
MSPB’s failure to operate with integrity. In this case MSPB’s AJ Andrew Niedrick
denied all the witnesses presented by the plaintiff’s counsel; yet approved all witnesses of
the Defendant (Commerce).
Integrity Issue 7: MSPB Oversight Process Appears Improper and a Conflict of
Interest
Presently anyone who suspects that a MSPB staff member has committed fraud, waste,
abuse, gross mismanagement is directed to file a complaint with the MSPB’s Office of
the General Counsel (OGC) or the U.S. Department of Agriculture Office of Inspector
General. Filing a complaint against the MSPB with its' OGC appears a conflict of interest
given the “Office of General Counsel provides legal advice to Board members and other
Board officials. It represents the Board in litigation (mainly before the Court of Appeals
for the Federal Circuit) and prepares proposed decisions for the Board…” Similarly,
filing a complaint against the MSPB with the Department of Agriculture's Office
Inspector General appears improper and a conflict of interest given USDA employees seeking appeals of various personnel often petition the MSPB.
4 Testimony within court proceedings on an employment case alleging race discrimination held
December 2011 disclosed how HHS officials practiced ”political favoritism” to oust the plaintiff, an
African-American female from her a Procurement Analyst and Deputy Director position within the
Office of Small and Disadvantaged Business Utilization at the HHS. HHS fired the African-American
female after hiring (non-competitively) a white male burrowed in Republican name Clarence Randall.
Plaintiff now seeks MSPB to reopen case, which is within the Board’s jurisdiction, to reconsider new
information pertinent to her termination that was uncovered during the trial.
Letter to Senator
Akaka (p.5) June 4, 2012
Although the oversight hearing of the OSC and the MSPB has passed, we are hopeful
that the subcommittee will seriously consider the matters we have presented in this letter.
We adamantly believe these issues raise serious questions about the competence and
integrity of the MSPB. Therefore, we ask you to include our letter in the official
permanent record to the hearing. We also respectfully request a meeting with you at your
earliest convenience to discuss these concerns, and to urge you to take prompt action to
