Claim for Overtime and Mileage Leads to Removal–Court Overturns MSPB

The Merit Systems Protection Board was overturned by the Federal Circuit in a case involving an Army Corps of Engineers employee fired for falsification of overtime claims and travel vouchers. In Leatherbury v. Department of the Army, C.A.F.C. No. 2007-3261, 4/29/2008, the court ordered the full Board to reinstate its Administrative Judge’s ruling that the appropriate penalty was written reprimand rather than removal, and reversed and remanded the case to the Board for further proceedings “consistent with this opinion.” (Opinion, p. 21)

Leatherbury, a 34-year government employee, had served 29 of his years as a civilian with the Corps. He had an unblemished disciplinary record when he ran into problems involving a claim for overtime pay and travel reimbursements. (p. 2)

For several years, Leatherbury commuted between facilities. He would drive his private vehicle to work, switch to a government vehicle to travel to and from other facilities, and then switch back to his personal vehicle to return home. In the process, he informally carried mail on his morning and evening runs between various facilities in his government vehicle.

When the local union (United Power Trade Organization) complained about Leatherbury’s use of a government vehicle for his commute between facilities, Leatherbury’s supervisors opted to take away his use of the government vehicle to travel between facilities, and to stop Leatherbury’s practice of delivering mail. At this point, bargaining unit employees took up the duty of delivering mail between the work sites and the agency paid them overtime for their efforts. Leatherbury had been doing this for years without overtime. It had been his practice to clock in when he arrived at the second facility—after picking up the mail, getting the government vehicle, and driving to the facility where he spent his day. (pp. 2-3)

Leatherbury and his supervisor wondered if he was entitled to overtime pay for the several years that Leatherbury had been delivering the mail. (p. 3)

The administrative officer of the project agreed that Leatherbury could submit a claim for retroactive overtime pay going back 6 years, the maximum period of time for which he could retroactively claim overtime. (p. 3)

Leatherbury prepared an estimate of his overtime and gave it to a clerk in the administrative services office who had been asked to prepare the request for retroactive overtime pay on behalf of Leatherbury. Once prepared, both Leatherbury and his supervisor reviewed the package and approved it for submittal. (p. 3)

Further, once he could no longer use a government vehicle, Leatherbury also started submitting claims for mileage for using his personal vehicle while on official time and official business to travel between the various job sites during the workday. He submitted eleven vouchers over a two-and-a-half year period seeking reimbursement for mileage. (p. 4)

At some point, the agency concluded that Leatherbury had submitted a false claim for overtime pay and false claims for mileage reimbursement. The agency eventually removed him based on 4 charges, including intentional falsification of overtime claim and travel vouchers.

Leatherbury appealed to the MSPB arguing essentially that he had not intent to falsify these documents; rather, he had submitted them in a good faith belief that he was entitled to the overtime and the mileage.

The AJ sustained only one charge, finding that Leatherbury had improperly approved a subordinate’s travel vouchers. However, on the other more serious charges, the AJ found that the agency had failed to prove that Leatherbury had intent to falsify the overtime claim and the travel vouchers seeking mileage reimbursement. (pp. 6-7) The AJ concluded that removal was not appropriate for the one charge sustained, and instead ordered mitigation of the punishment to a written reprimand. (p. 8)

The full Board overturned the AJ and reinstated Leatherbury’s removal. (p. 8)

Now, the Federal Circuit has reversed the full MSPB and sided with the AJ.

In doing so, the court pretty much adopts the AJ’s reasoning and analysis and agrees that only the one charge should be sustained against Leatherbury. The court had this to say on what it apparently viewed as the full Board’s strained logic: “We are at a loss to understand how an employee could be said to engage in misconduct by submitting an overtime claim based on an estimate so long as the estimate was reasonable.” (p. 13) Pointing out that Leatherbury’s overtime claim was “clearly intended to be an estimate,” the court disagreed with the full Board’s conclusion otherwise. (p. 16)

As to the false travel vouchers charge, the court chastises the full Board for overturning the AJ’s credibility findings “merely because it disagrees with those findings…,” and for its failure to give the AJ the required deference for those findings. (pp. 18, 21; citations omitted)

This adds up to a bad day in court for the MSPB and a victory for Leatherbury, who will be reinstated to his position retroactively. Presumably he will also get (or be able to keep) full reimbursement for his overtime and mileage.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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