MSPB Shows Clear Trend Supporting Agency Officials When They Get It Right

Third parties sometimes follow a new trend without specifically stating they are doing so. In several recent decisions, the Board seems to be giving agency deciding officials the benefit of the doubt when reviewing agency actions. Here is a quick summary.

In three recent cases arising in three different regions, the Merit Systems Protection Board overruled administrative judges’ decisions when it appeared to believe those judges were substituting their opinions for the judgments of agency deciding officials. The cases, involving bread and butter falsification and attendance issues, appear to signal a belief that deciding officials who weigh the facts and make reasonable decisions will be supported. Over the years, some agency representatives came to see AJs as looking for an excuse to reverse agency decisions–perhaps because agencies who do their homework have high win rates before MSPB.

The Board in it’s pamphlet “Questions And Answers About Appeals” answers the question “Who has the burden of proof in appeals proceedings?” as follows:

The Agency: The agency has the burden of proving that it was justified in taking the action. If the agency meets its burden of proof, the Board must decide in favor of the agency, unless you show that there was “harmful error’ in the agency’s procedures, that the agency decision was based on a prohibited personnel practice, or that the decision was not in accordance with the law. (my emphasis)

In other words, AJs should take seriously manager decisions that give the proper attention to proof, due process and the efficiency of the service.

Lets look at the decisions.

Whelan v. Postal Service, PH-0752-06-0062-i-1 (September 26, 2006)

This case involved a supervisor who authorized pay for work not done when he thought employees did good work. The falsification charge arose from, in essence, altered timesheets. The AJ reversed the falsification charge claiming that the appellant’s sworn statement given during an investigative interview was not reliable and that the agency had therefore failed to show by a preponderance of the evidence that the appellant intended to mislead or deceive the agency as to the charge of falsification. The AJ sustained a second charge, not falsification, and ordered a demotion.

In a quote from the decision, the board says “The AJ first found that the agency based its charges, in large measure, on the appellant’s sworn statement which he gave to Special Agents from the agency’s Office of Inspector General (OIG) during an investigative interview. The AJ further found that the statement was inaccurate when compared to notes taken by the Special Agents during that meeting. The AJ also credited the appellant’s testimony that he did not thoroughly review the statement before signing it because he was nervous and confused and wished to end the interview as quickly as possible.”

Let’s see if we’ve got this right. The judge believed the testimony of the appellant, a supervisor, that he (the appellant) shouldn’t have given a sworn statement that the agency relied on more than the mere notes of investigators. I don’t doubt that the supervisor was nervous and wanted the meeting over quickly. But he gave and swore to a statement.

I presume he was over the legal age in his particular state and there is no indication he was incompetent or coerced. So why did the judge get to throw out his statement and the charge. Beats me. How about you?

Apparently this beat the Board as well. Falsification charges require a showing of intent to defraud. In the statement, the appellant said he authorized unearned pay for people to reward them. Finding “the appellant knowingly provided the agency with incorrect information with a reckless disregard for the truth or with conscious purpose to avoid learning the truth”, the Board sustained the falsification charge and the manager’s original decision.

Jones v. Postal Service, AT-0752-06-0027-i-1 (September 27, 2006)

This case involves Family and Medical Leave Act of 1993 (FMLA), a subject sure to drive any supervisor to distraction. In this case, there were three specifications of a charge. The AJ only sustained one and mitigated the removal to a 14-day suspension.

The Board cites the facts as follows:

“Concerning July 20, 2005, the AJ cited the appellant’s testimony as follows: His wife had an attack at about 4:30 a.m. Around 6:15 a.m., he requested leave under the FMLA. At about 9:30 or 10:00 a.m., his wife began to feel better and wanted to go out. He convinced her to stay in. In the early afternoon, he agreed to take her to the mall. He picked up a friend and stopped at his mother-in-law’s house to pick up a wheelchair scooter. His mother-in-law, who is a nurse, went with them. His wife alternately walked and used the scooter. His work tour ends at 3:30 p.m.; and if he leaves for work in the afternoons, it takes him approximately an hour and a half to an hour and 45 minutes to get to work.

Concerning July 27, 2005, the AJ cited the appellant’s testimony as follows: Early in the day, his wife had an attack; he again requested leave under FMLA; his mother-in-law came around 10:00 a.m.; and around noon, his wife and mother-in-law left the house to get a prescription filled, but stopped at an aunt’s house and had lunch before returning. Concerning both dates, the appellant testified that he did not return to work because he believed that he had been granted leave for the entire day and “no one asked him to return to work.”

The Board found that the absences did not meet the standard of “need to care for” under FMLA regulations. Again the board stated its reluctance to mitigate an agency penalty because “because the agency has primary discretion in maintaining employee discipline and efficiency.” Apparently the AJ was absent when the day that was covered.

Sherlock v. GSA, SF-0752-05-0647-I-1 (September 15, 2006)

This case is interesting because it looks at the kind of medical information needed to support an absence. The AJ mitigated the appellant’s removal to a 90-day suspension for absence from duty without permission and without adequate justification and failure to follow leave-requesting procedures. The AJ’s rationale was that despite finding the charges sustained, the penalty exceeded the bounds of reasonableness. The Board in reversing said “we agree with the agency’s contention that the AJ gave insufficient weight to the seriousness of the appellant’s offenses and poor potential for rehabilitation. The AJ’s decision to mitigate runs contrary to his findings that the appellant not only deliberately and purposefully hid from her supervisor at home when she was scheduled to be in Denver, but was less than truthful regarding the reasons for her absence…”

Also important in this case is the Board’s finding that despite having numerous medical problems, the appellant failed to show that these problems were the cause of the behavior leading to her removal.

The Board’s stance in these cases seems clear to me. Let managers manage and make decisions. Good decisions should get the benefit of the doubt even if the AJ would do something else if in charge. AJs have the decided benefit of not having to run agency operations day to day nor deal with the consequences of problems employees create with their misconduct. Managers do.

As always, any views expressed above are mine and mine alone. Let’s hear yours.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.