MSPB Law Blog

The Agency's Burden of Proof at the MSPB

By John V. Berry, Esq., www.berrylegal.com

We are often asked how the Merit Systems Protection Board (MSPB) evaluates MSPB appeals brought by federal employees.  This article discusses the way in which administrative judges at the MSPB review and consider charges sustained against federal employees by their agencies.

Burden of Proof at the MSPB

An appeal brought be a federal employee (e.g. an appeal of a removal action by a federal agency), will be evaluated by an administrative judge based on the evidentiary standard that is appropriate.  For cases involving misconduct charges, the standard is "preponderance of the evidence" and for performance cases, it is a lower standard, "substantial evidence." In an MSPB appeal, a federal agency, much like in a criminal case, has the burden of proof to prove the charges alleged. 5 U.S.C. § 7701(c). As a result, the federal agency must prove the charge and establish a connection, or "nexus" between the charge and the efficiency of the service.  The "efficiency of the service" is a term which simply means for the good of government operations.

The preponderance of the evidence standard has been defined as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). In performance cases, the substantial evidence standard has been defined differently.  Substantial evidence has been defined as the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). Under this standard, the agency is not required to present evidence that is more persuasive than the evidence submitted by the appellant. Shuman v. Dep't of Treas., 23 M.S.P.R. 620, 624 (1984).

Examples

Example: A federal employee is accused of conduct unbecoming because of an allegation that they engaged in a fight at work with another employee.  The employee is removed for the alleged fight at work and appeals to the MSPB.  The federal agency will have to prove, by a preponderance of the evidence (51% of the evidence at the hearing) that the employee actually engaged in a fight in the workplace.

Example 2: a federal employees is accused of poor performance and placed on a Performance Improvement Plan (PIP).  The agency then removes the federal employee for failing the PIP.  The federal employee appeals.  In this type of case, the agency must show that the evidence shows that the federal employee could be seen as having engaged in poor performance.  This standard of proof is easier for federal agencies to show.  

Conclusion

In sum, when facing an MSPB appeal to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.

 

Conduct Unbecoming Charges at the MSPB

By John V. Berry, Esq., www.berrylegal.com

What is a Conduct Unbecoming Charge?

Conduct Unbecoming cases at the Merit Systems Protection Board (MSPB) are known to involve the most generalized form of misconduct. In other words, the charge can cover a number of different types of offenses. It is the most common charge used when no others specifically apply.  It is important to understand the nature of this type of charge when an employee is defending against this type of charge at the MSPB or during proposed discipline.  I have included some samples of conduct unbecoming charges to give a sense of how broad these types of charges can be.  

Sample Charges of Conduct Unbecoming

The following are some examples of conduct unbecoming charges that might be lodged against a federal employee:

1. On November 14, 2017, you engaged in conduct unbecoming when you began to argue with co-workers about an assignment that was overdue. You then approached your supervisor, Jim Jones, and told him “I am done here. You can take this assignment and shove it.” Your disrespectful attitude and profanity in the workplace is unacceptable and you.

2. On July 14, 2018, you engaged in conduct unbecoming when you informed others in the office that you were the recipient of the Purple Heart award for military service, when in fact you never served in the military. Your misconduct reflected poorly on the agency.

3. On October 5, 2017 and October 8, 2017, you engaged in conduct unbecoming when you claimed that you worked your full schedule during those two days. After an investigation, it was discovered that you did not work the two days in question, had not been in the office and falsely claimed time for hours not actually worked.

4. On November 5, 2017, you engaged in conduct unbecoming when you shoplifted a television from a local electronics store. You were subsequently caught for the theft, charged and convicted of criminal theft. 

Elements Needed to Prove Conduct Unbecoming

A conduct unbecoming charge is proven by demonstrating that the employee committed the general misconduct alleged. In order to prove a charge of conduct unbecoming at the MSPB an agency needs to be able to do so by a preponderance of the evidence. The agency will need to establish that the employee (1)  committed the misconduct as alleged and (2) that the conduct was improper or that it detracted from the federal employee’s character or reputation. Crouse v. Dept’ of Treas., 75 MSPR 57 (1997).

Defenses to Conduct Unbecoming Charges

There are a number of different types of methods of defense for general conduct unbecoming charges. The first is to challenge the actual facts alleged. If the facts can be disputed, the charge itself can potentially be defeated. Another potential avenue for challenging a conduct unbecoming charge is to argue that the charge was too vague and thus did not provide a legitimate opportunity to respond. Mason v. Dep't of Navy, 70 MSPR 584 (1996). Other defenses may involve the fact that other employees have engaged in similar conduct but not been charged with discipline. Other potential arguments, including issues where the same conduct has been charged multiple times may be challenged through the merger doctrine (the concept that the same conduct cannot be charged multiple times in the same manner). The number of potential defenses to a conduct unbecoming charge are varied and require the assistance of a attorney knowledgeable in federal employment law to determine the best strategy.  

Conclusion

In sum, when facing a conduct unbecoming charge it is very important to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.