According to the appeals court’s opinion, Tina Noffke, a Budget Analyst at the St. Louis Office of the National Geospatial-Intelligence Agency (NGA) of the Department of Defense, worked a flexible schedule. (Noffke v Department of Defense (CAFC No. 2019-2183 (nonprecedential) 4/8/20) She reported work hours through the NGA electronic time and attendance system. Every time an employee submits time sheets, the system flashes a notice that “[k]nowingly submitting an inaccurate time sheet is considered time reporting fraud and is subject to disciplinary action, including removal.” (Opinion p. 2)
On top of the required certification, each employee swipes an individual access card upon entering or exiting the facility; thus the agency’s records contain specific entry/exit times by employee.
Ms. Noffke was investigated for time and attendance irregularities. The office of inspector general interviewed her and at the time provided her with detailed spreadsheets showing her time reporting discrepancies. Upon conclusion of the OIG investigation, the agency proposed Noffke’s removal. It attached the OIG report that included the spreadsheets Ms. Noffke had been given previously at her OIG interview. The spreadsheet delineated 48 hours of absence without approved leave (AWOL), 145.5 falsely reported hours, and 234.07 hours deemed by the agency’s rules as conduct unbecoming. When she replied to the notice, Noffke requested all of the detailed documentation underlying the spreadsheets but the agency declined to provide it since the OIG report contained sufficient specificity to support the proposed removal.
Noffke appealed the agency’s decision to remove her to the Merit Systems Protection Board (MSPB). Following a hearing, the MSPB judge found that the charges had been supported by the agency, it had afforded her required due process, and that the agency had provided Noffke the evidence relied upon. (p. 3)
The appeals court has now sustained the MSPB decision upholding Noffke’s removal. The court brushed aside her argument that the charges lacked specificity, pointing to the spreadsheets that delineated the exact dates and times. (p. 4)
As to Noffke’s argument that the MSPB erred in relying on the OIG report that amounted to hearsay, the court cited the “long settled” principle that hearsay “may be used in administrative proceedings…” (p. 5) The court went on to opine that the OIG report “set forth ample evidence to sustain all three of the agency’s charges. And the Board had discretion to admit the OIG report as evidence…. We conclude that the Board properly relied on the OIG report and that substantial evidence supported the Board’s decision.” (p. 5)
Finally, as to Noffke’s argument that she was entitled to all the evidence underlying the OIG report as a matter of due process, the court ruled the detailed spreadsheets together with the agency’s explanation of the evidence satisfied due process rights. The court added, “We note that Ms. Noffke never sought discovery of those materials in the Board proceedings.” (p. 6)
The court has affirmed the MSPB decision and Ms. Noffke’s removal stands.
