                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     DANIELLA ORTOLANO,                              DOCKET NUMBER
                  Appellant,                         NY-0752-13-0155-I-1

                  v.

     SOCIAL SECURITY                                 DATE: February 4, 2015
       ADMINISTRATION,
                   Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Daniel Kravetz, New York, New York, for the appellant.

           David B. Myers, Esquire, and John M. Kelly, Esquire, New York,
             New York, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The agency has filed a petition for review of the initial decision, which
     reversed its removal of the appellant.       For the reasons discussed below, we



     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                            2

     GRANT the agency’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this Order.
¶2         The agency removed the appellant from her position as a Service
     Representative, GS-0962-08, in the East Village District Office, New York, New
     York, based on a charge of excessive absence, alleging that she worked only
     482.25 hours between March 12, 2009, and August 31, 2012. Initial Appeal File
     (IAF), Tab 1, Tab 6, Subtabs 4b-4c.
¶3         This appeal followed.      IAF, Tab 1.     The appellant raised an affirmative
     defense of disability discrimination, claiming that she suffered from a
     compensable back injury that caused her ongoing pain and mobility issues. Id. at
     5. While the appeal was pending, the Office of Personnel Management (OPM)
     approved her application for disability retirement. IAF, Tab 27. 2
¶4         After a hearing, the administrative judge determined that the agency proved
     its charge but that the appellant failed to establish her affirmative defense,
     concluding that she did not meet the definition of a qualified individual with a
     disability. IAF, Tab 29, Initial Decision (ID) at 12-15. The administrative judge
     nevertheless reversed the agency’s removal action on the ground that the agency
     had violated her right to due process.             ID at 15-16.       Specifically, the
     administrative judge determined that the deciding official, an Assistant District
     Manager, lacked the authority to reassign the appellant, that she was the
     decisionmaker in name only, and that the District Manager and the Area Manager
     made the actual decision to remove her. ID at 16.
¶5         On review, the agency contends that the administrative judge erroneously
     found that the appellant had been denied due process. Petition for Review (PFR)
     File, Tab 1 at 10-20. The agency further asserts that the administrative judge
     abused her discretion by ordering interim relief. Id. at 20-22. The appellant has


     2
      OPM in itially denied the appellant’s application for disability retirement. IAF, Tab 6,
     Subtabs 4h, 4l, 4o.
                                                                                      3

     filed a response addressing only the agency’s arguments regarding due process.
     PFR File, Tab 3.
¶6        We agree with the administrative judge’s findings on the merits of the
     underlying charge. The record supports the administrative judge’s determination
     that: (1) the appellant was absent for compelling reasons beyond her control so
     that the agency’s approval or disapproval was immaterial because she could not
     be on the job; (2) her absences continued beyond a reasonable time, and the
     agency warned her that an adverse action could be taken unless she became
     available for duty on a regular, full-time or part-time basis; and (3) the position
     had to be filled by an employee available for duty on a regular, full-time or
     part-time basis.   See Bair v. Department of Defense, 117 M.S.P.R. 374, ¶ 5
     (2012); ID at 4-13 (summarizing the record evidence and testimony).            The
     administrative judge also properly rejected the appellant’s affirmative defense of
     disability discrimination. See ID at 13-15.
¶7        We turn to the administrative judge’s findings on due process.         It is a
     violation of due process for a final decision concerning an adverse action to be
     determined by a biased decisionmaker or by a decisionmaker in a situation
     structured such that the risk of unfairness is intolerably high.         Svejda v.
     Department of the Interior, 7 M.S.P.R. 108, 111 (1981) (citing Withrow v.
     Larkin, 421 U.S. 35, 58 (1975)). In addition, the ultimate decision sustaining a
     proposed disciplinary action must be made by the person deemed as the deciding
     official, and not by some other individual.       See Fontes v. Department of
     Transportation, 51 M.S.P.R. 655, 668 (1991); see also Kelly v. Department of the
     Army, 121 M.S.P.R. 408, ¶ 9 (2014) (disagreeing with the appellant’s assertion
     that the deciding official simply followed the orders he was given and could not
     make an independent judgment and finding that the agency’s procedures therefore
     satisfied the requirements of due process).     When a procedural due process
     violation has occurred, the Board must reverse the adverse action, and the
     appellant is entitled to a new constitutionally-correct administrative procedure.
                                                                                          4

     Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir.
     1999). If the agency’s apparent error does not rise to the level of a due process
     violation, the Board is nevertheless required to analyze the facts under harmful
     error analysis to determine whether the procedural error is a reversible one. Ward
     v. U.S. Postal Service, 634 F.3d 1274, 1281-82 (Fed. Cir. 2011).
¶8        The administrative judge appears to have based her conclusion that the
     deciding official was a decisionmaker in name only, given the deciding official’s
     testimony that she did not have the authority to reassign the appellant to another
     location. ID at 16; see IAF, Tab 6, Subtab 4b; Hearing Transcript (HT) at 85
     (located at PFR File, Tab 1 at 109). 3      We disagree that lacking authority to
     reassign an employee to a different facility renders unconstitutional a deciding
     official's decision to sustain the removal. The Board has recently clarified in the
     security clearance context that due process requires that an employee be
     permitted to invoke the discretion of a deciding official who has the authority to
     select from among alternative penalties, to the extent such alternatives are
     permitted, feasible, and within management’s purview. Ryan v. Department of
     Homeland Security, 121 M.S.P.R. 460 (2014). Reassignment, however, is not an
     alternative penalty. 4 Further, the U.S. Court of Appeals for the Federal Circuit
     held in Griffin v. Defense Mapping Agency, 864 F.2d 1579 (Fed. Cir. 1989), and
     Lyles v. Department of the Army, 864 F.2d 1581 (Fed. Cir. 1989), that if an
     appellant does not have a right to be considered for a reassignment following the
     suspension of her security clearance unless granted by agency policy, statute, or

     3
       Through her representative, the appellant had requested reassignment to the Manhattan
     Social Security Card Center as a reasonable accommodation. IAF, Tab 6, Subtab 4b;
     see also HT at 84-85.
     4
       For purposes of this decision, when we are discussing a “reassignment,” we are not
     referring to situations involving management-directed reassignments, which also are not
     per se penalties. Such reassignments may occur when the agency is trying to avoid a
     reduction-in-force or for other reasons such as when management laterally moves an
     employee within the organizations or between organizations to better use that
     employee’s skills in another equivalent position.
                                                                                          5

      regulation, then she does not have a greater due process right to be considered for
      such a reassignment. Here, it is undisputed that the agency was not obligated to
      reassign the appellant. ID at 16. Applying the foregoing principles, because the
      appellant did not have right to be considered for reassignment, it was not a
      violation of due process for the deciding official to lack the unilateral authority to
      reassign her.
¶9         This leaves the unresolved question of whether the deciding official was
      acting with sufficient independence or whether she was the deciding official in
      name only. The initial decision contains little in the way of analysis of this issue
      independent of the administrative judge’s discussion of the deciding official’s
      authority to reassign the appellant.        Further, because there is conflicting
      testimony on this issue, the issue of whether the deciding official lacked the
      requisite independence cannot be adequately addressed absent credibility
      determinations.   For instance, when asked if she was the decisionmaker, the
      deciding official testified that she “signed the decision to remove” the appellant.
      HT at 80. However, the Area Manager testified that it was “my decision along
      with the [District] Manager” to remove the appellant, that the deciding official’s
      authority was “delegated,” and that he was the ultimate decisionmaker for
      personnel affairs in the area he managed.       HT at 183-84.     Other parts of the
      deciding official’s testimony, though, indicate that she played a more active role.
      The administrative judge did not conduct any detailed analysis of witness
      credibility on this matter pursuant to the factors set forth in Hillen v. Department
      of the Army, 35 M.S.P.R. 453, 458 (1987).            As the hearing official, the
      administrative judge is in the best position to assess witness crediblity.        See
      Haebe v. Department of Justice, 288 F.3d 1288, 1299-1300 (Fed. Cir. 2002).
¶10        Accordingly, we REMAND this case to the New York Field Office to allow
      the administrative judge to assess witness credibility and to obtain any additional
      evidence she needs to resolve the issue.         See, e.g., Thomas v. U.S. Postal
                                                                                          6

Service, 116 M.S.P.R. 453, ¶¶ 12-13 (2011). 5           On remand, the administrative
judge should provide a more extensive analysis of the due process issue pursuant
to the standard set forth in Spithaler, applying the Federal Circuit’s holdings in
Ward and Stone, as well as applicable Board law. If the administrative judge
reexamines the evidence and finds that the agency did not violate the appellant’s
right of due process, she shall conduct a harmful error analysis concerning this
issue.   If neither a due process violation nor harmful error is found, the
administrative judge shall make findings as to nexus and penalty. In conducting
her analysis, the administrative judge shall allow the parties to provide additional
relevant evidence and argument, including the presentation of additional hearing
testimony, if needed. 6




5
  The agency further argues that, because the administrative judge raised the due
process issue sua sponte, the initial decision is contrary to the Board’s decision in
Martinez v. Department of Veterans Affairs. PFR File, Tab 1 at 15-16; see Martinez v.
Department of Veterans Affairs, 119 M.S.P.R. 37, ¶7 (2012). Martinez “reaffirmed that
an employee must assert specific allegations indicating that the agency’s choice of the
deciding official made the risk of unfairness to the appellant intolerably h igh in order to
establish a due process violation based upon the identity of a deciding official.” Lange
v. Department of Justice, 119 M.S.P.R. 625, ¶ 9 (2013) (internal quotations omitted)
(citin g Martinez, 119 M.S.P.R. 37, ¶7). Contrary to the agency’s objections, the Board
may raise potential due process vio lations sua sponte. See Powers v. Department of the
Treasury, 86 M.S.P.R. 256, ¶ 10 n.3 (2000).
6
  On review, the agency also asserts that interim relief was improper and unreasonably
burdensome. See PFR File, Tab 1 at 20-22. We find no abuse of discretion. Even
assuming that the administrative judge did abuse her discretion, the agency’s arguments
are now moot because interim relief is in effect only pending the disposition of a
petition for review. See 5 U.S.C. § 7701(b)(2)(A); Garcia v. Department of State,
106 M.S.P.R. 583, ¶ 7 (2007).
                                                                           7

                                    ORDER
     For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
