The Burden of Proof at the MSPB – A Federal Employee’s Guide
10/08/2013
By John V. Berry, Esq., www.berrylegal.com
When federal employees have disciplinary or adverse action appeals before the Merit Systems Protection Board (MSPB) it is important for them to understand how their cases should be presented and the issues regarding how a federal agency will attempt to prove it’s case against a federal employee during the appeals process. This is where the issue of the "burden of proof" comes up. The “burden of proof” just refers to the level of evidence needed to be shown by a federal agency during an MSPB appeal in order to prove the allegations in an adverse action (e.g. removal, demotion or suspension over 14 days in length).
Burden of Proof Differs Depending on the Type of MSPB Appeal
The burden of proof needed for a federal agency to prove their case at the MSPB depends on the type of federal employee appeal. In adverse action cases like those where a federal employee has been removed based on misconduct (Chapter 75 of the U.S. Code), a federal agency has to prove the allegations that were made by a preponderance of the evidence presented (51%). In cases involving performance (Chapter 43 of the U.S. Code), like those where a federal employee has been removed following the failure to successfully complete a Performance Improvement Plan (PIP), the burden of proof is referred to as substantial evidence, which is significantly lower than 51%.
What Does the Burden of Proof Mean and How Can a Federal Employee Respond During an MSPB Appeal
The most common burden of proof for MSPB cases is the preponderance of the evidence standard. The best way to show how this burden of proof works is through the following example:
Suppose that a federal employee has been charged with insubordination for allegedly making rude comments to their supervisor. The supervisor takes action and proposes the federal employee for a 30-day suspension. Subsequently, the deciding official then hears the case and decides to uphold the proposed suspension, sustaining the full 30-day penalty. The federal employee then appeals the suspension to the MSPB. At the MSPB hearing, the federal agency will have to prove that it is more likely than not (51% of the evidence presented) that the employee made insubordinate or rude comments to their supervisor. This will entail testimony from any witnesses, the supervisor and the Appellant (the federal employee). At the end of the hearing, whichever side, as viewed from the judge’s perspective, which has produced more evidence than the other side will prevail.
The key to responding to a federal agency’s attempt to meet their burden of proof in a MSPB disciplinary case is to focus on the charges and specifications that have been brought. The entire case will center on the language used in the charge and specifications. The more that a federal employee is able to disprove portions of the charges and specifications, the harder it will be for the federal agency to meet their 51% burden of proof in disciplinary cases. In performance cases, the Appellant’s burden is higher to disprove the allegations of substandard performance that have been made making such appeals more intensive.
Conclusion
When a federal employee is involved in an MSPB appeal it is important for them to obtain the legal representation. Our law firm stands ready to advise individuals on issues involving MSPB appeals and the required burden of proof. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.