The Merit Systems Protection Board was handed another defeat recently by the U.S. Court of Appeals for the Federal Circuit. In Freeman v. United States Postal Service (No. 04-3399, September 6, 2005; a decision “not citable as precedent”), the court reversed the MSPB and remanded “for determination of an appropriate remedy in favor of Freeman.” (Opinion p. 8)
After serving 12 years as a rural letter carrier, Mr. Freeman was removed by the Postal Service based on a charge of willful misrepresentation relating to an on-the-job injury. He had filed a claim with the Office of Workers Compensation Programs and stayed out of work for the better part of two months. OWCP eventually accepted his claim. Meanwhile, USPS became aware that Freeman was delivering newspapers while he was off from work on continuation of pay. The USPS proposed his removal and supported the willful misrepresentation charge with three specifications.
On appeal to the MSPB, Freeman succeeded in knocking out two of the specifications. The specification upheld by the AJ–and found to be sufficient to warrant Freeman’s removal for willful misrepresentation–was that he intentionally wrote an incorrect date on the OWCP CA-7 form that he filed just before returning to work, extending his “leave buy back” period by one day.
Freeman defended this oversight by pointing out that he suffered from Attention Deficit Hyperactivity Disorder (ADHD), which caused him to have difficulty with forms and argued that the agency should have accommodated this disability. Not so, said the AJ. She pointed out that Freeman never sought accommodation for this disability in the past. She concluded that he “failed to offer a plausible explanation for the incorrect information furnished on the OWCP form” From this the AJ inferred that he “knowingly provided the wrong information…” and this went to the “essence of the charge.” Removal was reasonable because of the “very serious nature” of Freeman’s misconduct. (p. 4) The full MSPB affirmed the AJ decision. (Case No. BN0752030133-I-1)
The court points out that misrepresentation requires that the government prove that the employee (1) supplied incorrect information; and (2) did it intentionally so as to deceive or mislead the agency.
The crux of the case is whether the government proved the second of these elements. Freeman argued that the agency put the burden on him to prove he did not have intent to deceive. The court agreed. It felt that the ADHD provided a “plausible explanation for providing erroneous information” and it was therefore up to the agency to prove that he intended to deceive. It failed to do so. (p. 6).
I found myself wondering how this case got this far. The MSPB threw out most of the agency’s case but ended up letting a one-day misstatement on a complex OWCP form support the removal of a twelve-year employee—a removal that will almost certainly be mitigated when the MSPB handles the remand from the court. There is an amusing footnote in the court’s opinion that makes me wish I could have been the proverbial “fly on the wall” when the three judges deliberated on this case:
“We question the administrative judge’s conclusion that the OWCP form was sufficiently clear that she doubted ‘that the appellant’s ADHD impacted his ability to complete the OWCP form correctly.’… It is not entirely clear whether the employee is supposed to enter the first and last dates for which leave is claimed or to provide the last date worked and the date of return. These particular sources of confusion do not appear to have directly caused Freeman’s error, but they tend to show that filling out an unfamiliar form can be more difficult than normal job duties for someone diagnosed with moderate to severe ADHD.”