Prohibited Personnel Practice gets HR Specialist 45 days on the beach

Petitioner: Special Counsel
Respondents: Richard F. Lee, Diane L. Beatrez
Decision Number: 2010 MSPB 89
Docket Numbers: CB-1215-08-0014-T-1, CB-1215-08-0015-T-1
Issuance Date: May 14, 2010
Appeal Type: Disciplinary Action - Prohibited Personnel Practice
Special Counsel Actions
- Disciplinary Actions
Board Procedures/Authorities
- Criteria for Board Review (Fact Findings)
Evidence – Credibility – Circumstantial/Direct
Penalty

The Special Counsel petitioned for review of an initial decision issued by the administrative law judge that dismissed the Special Counsel’s complaints against the respondents for committing a prohibited personnel practice. The Special Counsel alleged that the respondents, in their roles as Human Resource (HR) Specialists for the U.S. Coast Guard, violated 5U.S.C. §2302(b)(6) by granting a preference or advantage to Coast Guard Senior Legal Instrument Examiner Eric Woodson (GS-8) for the purpose of improving his prospects of obtaining a promotion to a GS-11 supervisory position.

When the supervisory position was first announced, parallel vacancy announcements were issued: a delegated examining unit (DEU) announcement open to all qualified U.S. citizens; and a merit promotion announcement limited to “status eligibles.” Both announcements sought candidates for the GS-11 level only, which had the effect of generally excluding applicants below the GS-9 level. Woodson applied under the merit promotion announcement but was not referred because, as a GS-8 employee, he was ineligible for promotion to GS-11. Commander (CMDR) Laura O’Hare contacted respondent Lee to inquire as to why Woodson had not been referred, and requested that HR “reopen” the DEU announcement and create a new list for referral. Lee testified that CMDR O’Hare specifically wanted to reopen the DEU list so that Woodson’s nongovernmental experience could be considered. In an e-mail to Lee, another HR Specialist (House) instructed Lee to “have Commander O’Hare talk about lack of adequate candidates.” The DEU referral certificate bears a handwritten notation by CMDR O’Hare, stating that she wanted to re-advertise the job “[b]ecause of a lack of sufficient, well-qualified candates.” The vacancy was opened a second time, using both merit promotion and DEU announcements, but the position was still advertised only at the GS-11 level. Beatrez notified Lee via email that she had been told “the reason the job was re-advertised was to try and reach Mr. Woodson,” and explained that she was unable to qualify Woodson at the GS-11 level. Lee notified CMDR O’Hare: “They did not find [Woodson] qualified for the position based on his résumé and how he responded to the KSAs. My recommendation if you want to [consider] him is to cancel and advertise the position as a GS-9 with potential to GS-11.” CMDR O’Hare notified Lee that she wanted the position re-announced as a “GS-9 with potential to GS-11.” CMDR O’Hare further asked that the new solicitation be limited to the Los Angeles/Long Beach local area, and instructed Lee to advertise the vacancy “for the minimum amount of time.” This was done, and Woodson was selected for the position.

In analyzing the decision to re-advertise the position after the first set of vacancy announcements, the administrative law judge found that the email exchange between CMDR O’Hare and HR Specialists might have created the appearance that Lee was advising CMDR O’Hare on how to create a pretext for re-announcing the position, but he credited CMDR O’Hare’s testimony regarding her own motivations, which he found supported a different conclusion: that CMDR O’Hare’s initial failure to understand the complexities of the federal personnel system caused her to be confused as to the best way in which to structure an announcement that would capture candidates with the most relevant experience. Similarly, the administrative law judge found that the email messages regarding the decision to cancel the second set of vacancy announcements would certainly have aroused suspicions, but that the reason that these vacancy announcements were cancelled was a lack of sufficient qualified candidates in the selection pool. Regarding the third vacancy announcement, the administrative law judge credited Lee’s testimony that he believed CMDR O’Hare was not just trying to reach Woodson but was seeking to consider internal candidates who may have had qualifications similar to those of Woodson.

Holdings: The Board granted the Special Counsel’s petition for review, reversed the initial decision, and found that the respondents committed a prohibited personnel practice that warrants discipline:

1. The Special Counsel proved by preponderant evidence that both respondents violated 5U.S.C. §2302(b)(6) when they intentionally assisted CMDR O’Hare in granting an illegal preference for employment to Woodson.

a. Whether the respondents violated 5U.S.C. §2302(b)(6) turns on whether they intended to afford preferential treatment to Woodson. It is not the action itself that violates the law, but, instead, the intent behind the action.

b. The administrative law judge’s analysis of intent rests largely on credibility determinations. Under Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002), the Board must normally defer to the judge’s credibility determinations when they are based upon the observation of the demeanor of witnesses testifying at a hearing. Nevertheless, the Board may substitute its own determinations of fact for those of an administrative judge, even when his credibility findings are based in part on demeanor evidence, if the Board can articulate a sound reason, based on the record, for a contrary evaluation of the evidence. The Board may overturn credibility determinations when the findings are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole.

c. Although the administrative law judge did not ignore the evidence that would support a finding of preferential treatment, his findings and credibility determinations are nevertheless inconsistent with the weight of the documentary evidence and do not reflect the record as a whole. In the Board’s view, the administrative law judge gave a sizable body of particularly telling circumstantial evidence too little weight in favor of some direct testimony that was inconsistent with that body of evidence. As a result, he explained away serious contradictions between the testimony and the other less favorable evidence in the record, crafting an improbable account of the events leading up to Woodson’s appointment to the vacant position.

d. The Board acknowledged that the strongest evidence of intent points not to the respondents, but to CMDR O’Hare, who retired before a hearing could be held on a proposed disciplinary action against her. Nevertheless, “given the rather blatant intention of granting a preference to Woodson that CMDR O’Hare’s communications express to the respondents,” the Board stated that it could not ignore the actions of the respondents, who are HR professionals, “in intentionally facilitating an obvious violation of section 2302(b)(6),” and interpreted that section as reaching conduct that aids and abets another who is violating the statute.

e. The Board found the facts in this case distinguishable from the typical “obey now, grieve later” situation described in Board case law. There is no evidence that CMDR O’Hare ordered the respondents to take actions that would ensure that Woodson appeared on the certificate of eligibles, and neither respondent was one of CMDR O’Hare’s subordinates.

2. After reviewing the respondents’ relative involvement in the violation of §2302(b)(6) under the relevant Douglas factors, the Board determined that the appropriate penalty for Lee was a 45-day suspension without pay, and a 10-day suspension without pay for Beatrez.

MSPB decision page 12 - Ed Masterson violates federal law 5 USC 2302(b)(8)

This is page 12 of the December 22, 2009 Merit Systems Protection Board decision by Judge Ruggiero where she ruled that Ed Masterson violated federal law - the Whistleblower Protection Act and committed a Prohibited Personnel Practice under 5 USC 2302(b)(8). Ed Masterson retaliated against a federal whistleblower who disclosed three unsafe air traffic procedures at Newark Liberty Airport. These procedures have now either been corrected, stopped or just no longer used. There haven't been any more near-collisions at Newark Airport since these procedures were corrected or stopped. I think that speaks volumes. In fact, on the one procedure the runway 22 Left/runway 11 simultaneous landings, the incidence of go-arounds (aborted landings) was reduced by 80%. That is a staggering number.

Ed Masterson ignored the danger and even went as far as to put a policy in place to bring the airplanes closer together. Yes, even closer! I guess a near-collision isn't close enough for this numbskull FAA manager. It really pissed him off when he was presented evidence that conflicted with his warped view of reality. Hence, the retaliation.

More to come on this.

Clifton Rushing's last day at Newark Tower

We had a positive development at Newark Air Traffic Control Tower this month. December 14th, 2010 was Front Line Manager - Clifton Rushing's last day of work at EWR. For those of you who don't know the backstory, I'll give a very short explanation.

On February 2, 2008 Clifton Rushing verbally attacked me while I was controlling aircraft at Newark. Yes, that's right - WHILE I WAS WORKING LIVE TRAFFIC. Yes, there are people on those airplanes. Maybe even you, your friends or your family. His actions were disruptive to the operation and could have caused an accident.

What was FLM Rushing so bent about?? He didn't like the fact that the pilots were confused by a new procedure and they had the gall to ask me some questions. And the worst part of it all......I actually answered them!! Oh.my.God! I was doing my job --- too well.

So the marbles in FLM Rushing's head bounced around a bit and he chose to confront me while I was working airplanes. Do you know what was his solution to the pilots' questions and the dangerously confusing procedure? HE TOLD ME NOT TO ANSWER THE PILOTS!!!!!!!!!!!!!

What a dipsh*t...Are you F'n serious....DON'T ANSWER THEM???????

And this jackass is a SUPERVISOR in the Federal Aviation Administration. The agency tasked with protecting your life when flying!!!

Anyway, this idiot gives me a reprimand for answering questions of the pilots who don't know what the hell they're supposed to do when they takeoff from Newark Airport because of some F'd up procedure put together by a bunch of sycophant washed-out controller wannabes sitting in cubicles somewhere.

A year later, a federal administrative judge at the Merit Systems Protection Board rules that the reprimand was in VIOLATION OF THE - WHISTLEBLOWER PROTECTION ACT. The judge ruled that FLM Rushing was complicit in a reprisal action against the appellant (me). Clifton's actions constituted a Prohibited Personnel Practice.

FAA's own regulations state that anyone committing a PPP is subject to 30-day suspension to removal from service for a first offense and a second offense is simply removal. Well, this was the first of two PPP's that FLM Rushing committed in a period of 5 months and against the same appellant (me).

Yet, he is still gainfully employed by the FAA and getting paid over $150,000 a year plus benefits and bonuses. This guy, who would rather see a pilot run his plane into a building than answer his question, is collecting a nice, fat paycheck on the taxpayer's dime. If you want to cut the federal budget - start here!

It took almost 2 years to get to the point of this blog post, but after much complaining on my part to the highest levels of FAA administration, FLM Rushing was finally transferred out of Newark Tower. At least I don't have to look at his ugly face anymore. I did everything possible not to work with him in the control tower. It cost me money and leave time to stay away from him. I'm still waiting to get that back.

I'm sure the FAA transferred him with a paid move of $27,000 cash and probably gave him a promotion to go along with it. All these great perks for a guy who is a hazard to any airport he works at. If anyone finds him, please drop me a line. I need to warn the flying public about this guy.

OK FAA - IT'S TIME TO MAN UP AND FIRE THIS GUY. YOU HAVE THE AUTHORITY AND THE RULINGS. IF I WOULD HAVE DONE THIS, I'D BE WORKING AT 7-11 MAKING MINIMUM WAGE.

FIRE CLIFTON RUSHING. YOU KNOW YOU HAVE TO.

Love Ray.....................................

An explanation of why FAA should remove Ed Masterson from service with the Federal Aviation Administration

On December 22, 2009 Merit Systems Protection Board Administrative Judge JoAnn M. Ruggiero ruled that Mr. Raymond Adams, an air traffic controller at Newark Airport, was illegally issued a reprimand by the Agency on February 22, 2008. The Judge determined that the discipline imposed on Mr. Adams was motivated by his disclosure of unsafe air traffic procedures at Newark Liberty Airport. This reprisal for whistle blowing activity is prohibited by 5 C.F.R. 2302(b)(8) and is considered a “Prohibited Personnel Practice”. The reprimand was ordered cancelled as of its effective date and per MSPB regulation 5 C.F.R. 7701(e)(1), the Judge’s initial decision became final on January 26, 2010 and is not subject to further appeal.

Judge Ruggiero’s reasoning of her decision clearly implicates Air Traffic Manager, Mr. Edward Masterson as the primary actor in the commission of the Prohibited Personnel Practice. In the Judge’s decision, she stated, inter alia, that Mr. Edward Masterson was aware of the appellant’s disclosures to Congress and the media stories regarding the unsafe procedures, and that he attended the February 2008 meeting in Representative Chris Smith’s office where the procedures were discussed. She also stated that Mr. Adams’ disclosures were “a thorn in Mr. Masterson’s side” and Mr. Masterson gave “advice” to Mr. Rushing, the appellant’s immediate supervisor that Mr. Adams would have to be “dealt with”.

Due to his extensive experience in FAA facility management, it is reasonable to believe that Mr. Masterson was well aware of the law and FAA regulation prohibiting reprisals against employees for protected disclosures. Mr. Masterson was previously the Assistant Air Traffic Manager at Philadelphia Air Traffic Control Tower and held regional management positions in FAA. It appears Mr. Masterson committed this illegal action willfully and even when put on notice that his actions constituted retaliation, he refused to reconsider.

5 C.F.R. 1221(f) dictates the action MSPB will take upon the initial decision becoming final. The relevant portion of the Statute reads:

5 CFR 1221(f)

(1) A final order or decision shall be rendered by the Board as soon as practicable after the commencement of any proceeding under this section.

(2) A decision to terminate an investigation under subchapter II may not be considered in any action or other proceeding under this section.

(3) If, based on evidence presented to it under this section, the Merit Systems Protection Board determines that there is reason to believe that a current employee may have committed a prohibited personnel practice, the Board shall refer the matter to the Special Counsel to investigate and take appropriate action under section1215. (Emphasis added)

Section 1215 dictates the procedures for the Special Counsel to follow to initiate a disciplinary action against an employee. Specifically Section 1215(a)(3) indicates the penalties that may be imposed. These penalties include removal, debarment from service for up to five (5) years, suspension, reprimand and assessment of a civil penalty not to exceed $1100.00.

According to its website www.osc.gov, “The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Our basic authorities come from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).” It also states “OSC’s primary mission is to safeguard the merit system by protecting federal employee`s and applicants from prohibited personnel practices, especially reprisal for whistleblowing.” (Emphasis added)

Although the OSC has the primary responsibility for initiating disciplinary action against employees committing Prohibited Personnel Practices, the OSC may authorize the Agency to discipline the offending employee itself.

According to the FAA’s Human Resources Operating Instructions (effective July 1, 2008), Table of Penalties #40, the penalty for a first offense of committing a Prohibited Personnel Practice listed in the Personnel Management System (PMS), Introduction, Paragraph VII is a 30-day suspension to removal. In #41 of the same table, the penalty for retaliation against an alleged whistleblower is to be determined by the Office of Special Counsel. The act of retaliation against a whistleblower is a Prohibited Personnel Practice (5 CFR 2302(b)(8)).

Since the Agency (i.e. FAA) may be authorized to discipline the offending employee for the Prohibited Personnel Practice, it should immediately contact the OSC and initiate action to remove Mr. Edward Masterson from his service with the Agency. Mr. Masterson’s actions placed many thousands of lives in jeopardy and embarrassed the Agency on multiple occasions in the eyes of the Congress and the Public. He also removed Mr. Adams from the air traffic facility for over a year on administrative leave, costing the Agency over $150,000. Mr. Adams’ victory in front of the MSPB will also cost the Agency tens of thousands of dollars in attorney’s fees. Mr. Masterson should further have all bonuses and promotions gained since 2008 revoked and subsequently repaid to the Agency.

In addition to Mr. Masterson’s involvement, the Front Line Manager, Clifton Rushing was complicit in the commission of the Prohibited Personnel Practice. Mr. Rushing was the instigator of the conflicts leading up to the PPP and his actions disrupted the air traffic operation at Newark Airport on two separate occasions endangering the passengers and causing traumatic injury to Mr. Adams. Mr. Adams’ injury was confirmed by a medical professional and upheld by the Department of Labor, even over the objections of Mr. Masterson. Mr. Rushing’s actions cost the Agency tens of thousands of dollars and a great loss of productivity. The Agency has the authority to discipline Mr. Rushing for his actions. Mr. Rushing should be demoted from his position of Front Line Manager back to an Air Traffic Control Specialist and he should be reassigned to another facility. He should also have his pay reduced to its pre-promotion level. Mr. Rushing’s presence at Newark Tower continues to be an unwarranted source of tension for Mr. Adams.

In the FAA’s own Manager’s Guide to Discipline, under the heading “Provide Positive Leadership and Serve as a Role Model” it is stated that managers are held to a higher standard of behavior than the employees they supervise. It clearly reads, “Simply stated, with all things being equal, a manager would receive a greater “penalty” for his/her failure to comply with a workplace rule than a subordinate would.” For their unprofessional and illegal conduct, both of these managers should receive penalties on the high end of the suggested range.

A big win for NATCA!

NATCA just won a $67,000 legal fee award against the Federal Aviation Administration for successfully overturning the illegal 30-day suspension levied upon me for my protected disclosures of unsafe procedures at Newark Airport. I managed to get both procedures changed and made safer and also beat FAA in front of the Merit Systems Protection Board and a neutral arbitrator.

None of the b*llsh*t charges stuck.

Now it’s time for some accountability. I’m again calling for the offending managers to be fired. I have to solid decisions proving that the managers committed Prohibited Personnel Practices under 5 USC 2302(b)(8). Not only that, they cost the FAA approximately $250,000 and counting.

Now we have a safer airport….it’s time to fire the managers that made it unsafe in the first place.

I urge you all to call your congressional representatives and demand accountability.

Ray