MSPB Overturned by Appeals Court

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By on February 27, 2019 in Court Cases with 0 Comments

Close up of a judge's gavel on a desk with a law book in the background

This recent case (Hanh Do v Department of Housing and Urban Development (CAFC No. 2018-1147, 1/14/19)) should be of concern to any federal supervisor with hiring authority.

The facts as recited in the court’s decision are that Ms. Do, a 19-year employee, became a supervisor in HUD (Department of Housing and Urban Development), serving as Director of the Information Systems Audit Division from 2006 until she was demoted and suspended in 2016 for how she handled the hiring and promotion of a particular employee. Do hired a GS-11 auditor away from the Department of Justice in 2006. The applicant indicated on her resume that she had a degree in accounting. When a background check was performed it turned out there was no such degree. Do questioned her employee and was told that she had completed the degree requirements but her grade point average was not high enough to be awarded the degree unless she took one more course to bring the GPA up to meet the degree conferral requirements. The employee insisted it was an honest mistake, she thought she had met the degree requirements when she applied for the HUD job, and that she would move out on fixing this right away by taking the required additional course.

After her hire, this employee got two promotions and in 2009 applied for one of two openings for GS-14 jobs. Human Resources ruled her qualified and placed her on the slate of candidates referred to Do. Sure enough, Do selected this employee for one of the GS-14 positions, apparently full well knowing that she still did not have her accounting degree. 

Some three or four years later, Do talked to her boss about this employee’s lack of a degree (presumably she still had not taken that last course that she needed.) Do’s boss talked to HR and the decision was to that the employee “must obtain her degree.” The employee resigned shortly thereafter having worked some ten years at HUD. (pp. 2-4)

A few months later, HUD proposed to demote Do one grade to a GS-14 nonsupervisory senior auditor job and to suspend her for 14 days, both for negligence of duty. The notice cited the original hiring of a non-degree auditor, and the three separate promotions, all the while Do knew that she did not have the required degree. Do responded by insisting that the degree was not required, there was another way this individual met the job requirements, and therefore she could not have been negligent. The deciding official ordered up Do’s demotion and suspension.  He sidestepped Do’s argument about the degree not being a hard and fast requirement by stating that Do had tried several times to get this employee to finish her degree, and, therefore Do “believed, on some level….” that the degree was required. There’s a bit of a problem with this logic. The Charge and Specifications were based on Ms. Do knowing that the employee did not have a degree “which was required for the position…” (p. 8) (Practitioners might agree that at this point the agency perhaps should have done some re-thinking and possibly executed a do-over of the charges and specifications.)

Ms. Do appealed to the MSPB. The Board administrative judge sustained the agency’s action. The evidence showed there was an alternate way to qualify other than having a degree, but the judge fell in line with the agency’s argument. He examined the OPM experience and education requirements for the various positions and concluded that the employee did not meet those requirements. In effect, he switched from Ms. Do knowing the employee did not have a degree to Ms. Do knowing the employee did not meet the alternative requirements for the positions. (This is disturbing on some level because typically HR makes this kind of decision and they had in fact certified the employee as eligible for each of the jobs in question. Why then is the supervisor being charged with negligence?) MSPB upheld the adverse action and Ms. Do took her case to the appeals court (there was no full Board to review her case so she elected to go straight to court).

This time she won, not only on the merits, but the court ordered the agency to pay her court costs. 

The court was not pleased with the Board’s decision.The crux of the problem is that the administrative judge concluded that, contrary to the agency’s assertion, a degree was not required for any of the positions at issue; however the employee did not meet the education/experience qualification factors and therefore Do was negligent. As the court points out, this is NOT what Ms. Do was charged with. She was charged with hiring and promoting an employee whom she knew not to have a degree in accounting. The upshot is that the MSPB did not review the agency’s actual charge and specifications and determine whether they were proved…and they were not. Instead something completely different was proved having to do with the alternative way to qualify the employee for these positions. As stated by the court, “The Board’s decision is inconsistent with the agency’s charge and supporting specifications. On appeal, the Board was required to limit its review to the grounds specified in the notice and relied on by the deciding official, namely, that a degree was required and that Do hired and later promoted Asuncion, knowing that Asuncion did not have a degree.” (pp. 11-12)

The court held that this was procedural error that amounted to a violation of Ms. Do’s due process rights. Reversed and remanded and costs awarded to Ms. Do. 

Perhaps the agency needs to think this one through a bit more in light of the evidence that a degree is not required after all?

Do v. HUD

© 2019 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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