MSPB Law Blog

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

What is Lack of Candor?

Lack of candor cases at the Merit Systems Protection Board (MSPB) are unique. Candor, according to Dictionary.com, is defined as "the state or quality of being frank, open, and sincere in speech or expression." Lack of candor charges seem to be more common today than they have been in the past.  In fact, more federal agencies use this charge against federal employees today than ever before. While many individuals would think that lack of candor and falsification charges are the same type of charge, they are not.  A lack of candor charge is distinct from a standard falsification charge. A lack of candor charge is more broad than a falsification charge.  Falsification cases involve direct evidence of deception. Lack of candor is more a term of art, which can involve more general conduct. Usually, lack of candor cases involve charges alleging that a federal employee did not disclose information that the agency thinks should have been disclosed by the employee.

To prove a charge at the MSPB an agency needs to be able to do so by a preponderance of the evidence.  For lack of candor cases at the MSPB there is no need for an agency to prove an intent to deceive, but rather that under the circumstances, the information should reasonably been disclosed for completeness. Fargnoli v. Dep’t of Comm., 2016 MSPB 19 (2016). Lack of candor, however, necessarily involves an element of deception. Parkinson v. Dep't of Justice, 815 F.3d 757, 766 (Fed. Cir. 2016).  There needs to be some element of proof that the federal employee knowingly omitted or hid facts from an agency.  

Sample Charge of Lack of Candor

The following is one sample of a lack of candor charge:

Charge 1, Specification 1: Lack of Candor

On July 12, 2017, you were interviewed by investigators about the theft of computers from your office. You testified that you did not take the computers when asked.  However, even though you were not asked if you knew who took the computers from your office, you had knowledge of the individual that had taken them and did not disclose that to investigators. You did not disclose this information.

Elements Needed to Prove Lack of Candor

Lack of candor generally requires that an agency prove two elements according to the Fargnoli case. These are:

(1) the federal employee gave incorrect or incomplete information; and

(2) the federal employee (he/she) did so knowingly.

The MSPB Board in Fargnoli provided reasoning for a lack of candor analysis in their decision:

Because the agency failed to establish by preponderant evidence that the appellant knew her statement was false, we found the administrative judge was correct in not sustaining the charge. Our reviewing court recently took a similar approach in Parkinson, in which an employee of the Federal Bureau of Investigation (FBI) was charged with lack of candor under the FBI Offense Code based on his alleged “failure to be fully forthright” in his statements to agency investigators. In that context, the court found that the “element of deception” required under Ludlum entailed that the employee must have “knowingly” failed to be forthright (citing Parkinson, 815 F. 3d at 766-67).

Id. at page 9.

Hence, the key in defending lack of candor cases before the MSPB falls on the issue of whether or not the federal employee knowingly failed to be forthright. Because of the ever increasing number of lack of candor charges, federal employees involved in administrative investigations and disciplinary actions involving this type of issue should retain counsel early to attempt to avoid lack of candor charges and/or defend against them at the MSPB.  

Contact Us

In sum, when facing a lack of candor 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. 



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

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov in the appeals process. In doing so, we have often been called upon to represent federal employees in cases where the facts are either not in dispute or where they are less in dispute than the penalty which is assessed.  We often attempt to mitigate proposed removal actions for federal employees to lesser penalties.  Often, these types of issues move to the MSPB on appeal.   

How Does the Penalty Evaluation Process Come Into Play? 

Typically, a penalty analysis comes into play following a decision on the merits of disciplinary charges by a federal agency.  If a charge is not sustained against a federal employee then no penalty need be evaluated.  If a federal agency decides to sustain some or a portion of the charges, they will also issue a penalty, i.e. suspension, removal, demotion.  The penalty analysis will be governed by Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981).  In Douglas, the MSPB held that 12 factors (“Douglas factors”) must be considered when evaluating possible penalties for disciplinary cases involving federal employees.

A federal supervisor is responsible for ensuring that a disciplinary penalty is fair and reasonable.  If a penalty is disproportionate to the alleged violation or is unreasonable under Douglas, it is subject to being reduced or reversed by the MSPB, even if the charges would otherwise be sustained.  As such, it is a federal agency’s duty to determine its penalty in accordance with the Douglas factors.  Furthermore, an agency must give “substantive consideration to a lesser penalty.”  Banez v. Dep’t of Defense, 69 M.S.P.R. 642, 650 (1996). 

When Does the MSPB Mitigate Disciplinary Penalties?

The MSPB mitigates disciplinary penalties when a penalty exceeds the bounds of reasonableness. While penalty selection is generally a matter of federal agency discretion, the MSPB will review a case to ensure that penalty judgment has been properly exercised.  The most typical situation is where a federal employee attempts to mitigate the penalty of removal to something less, like a suspension or demotion action.  

In making that type of determination, the MSPB must give appropriate weight to the agency's primary discretion in maintaining employee discipline and efficiency, recognizing that the Board's function is not to displace management's responsibility but to insure that management discretion has been properly exercised. See Brown v. Dep’t of Treas., 91 M.S.P.R. 60, P 7 (2002). Therefore, the MSPB will only usually disturb the agency's chosen penalty if it finds that the agency failed to weigh relevant factors or that the agency's judgment clearly exceeded the limits of reasonableness. See Toth v. USPS, 76 M.S.P.R. 36, 39 (1997).

In assessing the appropriateness of a federal agency's penalty selection, the most important factor is the nature and seriousness of the misconduct and its relation to the employee's duties, position and responsibilities, including whether the offense was intentional or was frequently repeated. See Batts v. Dep’t of Interior, 2006 M.S.P.B. 118, 102 M.S.P.R. 27, P 11 (2006).

The MSPB will modify a penalty when it finds that an agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness.   If a deciding official fails to appropriately consider relevant factors the MSPB does not need to defer to the agency's penalty determination.  And if the MSPB finds the agency's original penalty to be too severe, it may mitigate it to the maximum reasonable penalty. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). The MSPB may also mitigate to the maximum reasonable penalty when the deciding official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon the penalty. Cunningham v. USPS, 109 M.S.P.R. 402, P 24 (2008).  

Recent samples of MSPB cases mitigating disciplinary penalties.

Some recent examples of mitigation at the MSPB follow:

1. Judy v. DOJ, 2015 MSPB LEXIS 3508 (2015) (removal mitigated to 7-day suspension where administrative judge found that deciding official had not given bona fide consideration to the mitigating factors existing in  case).

2. Solis v. DOJ, 2015 MSPB LEXIS 4426 (2015) (removal mitigated to 60-day suspension where administrative judge and Board found that the maximum reasonable penalty was a 60-day suspension in light of the appellant's positive performance record, absence of disciplinary history, cooperation during the agency's investigation, and admission of wrongdoing).

3. Seward v. DOD, 2015 MSPB LEXIS 3954 (2015) (removal mitigated to 60-day suspension where administrative judge found that although the sustained charge of sleeping on duty warranted discipline, when weighed against the mitigating factors of the appellant's years of service, his successful performance rating, his medical condition, and his efforts to correct the effects of that condition on his work, the penalty of removal was beyond the bounds of reasonableness).

4. Edmonds v. VA, 2015 MSPB LEXIS 2424 (2015) (removal mitigated to 14-day suspension where administrative judge found that there was no evidence that the offense was intentional, in addition to the fact that the federal employee had 7 years of prior service, an unblemished disciplinary record, good performance and because the agency’s table of penalties appeared to favor a lesser penalty).

5. Davis v. Dep't of the Navy, 2015 MSPB LEXIS 1917 (2015) (removal mitigated to 30-day suspension where administrative judge found that while federal employee had past discipline, that the agency had not proven all of its charges, and the employee held potential for rehabilitation).

Conclusion

When a federal employee is involved in an MSPB appeal, it is important for them to have legal advice and representation. 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 at https://www.facebook.com/BerryBerryPllc.

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

During the course of a Merit Systems Protection Board (MSPB) appeal it is very important for federal employees to request documents, recordings, video and/or electronic data from their federal gency as part of their discovery efforts. Discovery is the legal process in which a federal employee can legally require a federal agency to turn over information which could be helpful to the federal employee in pursuing a successful MSPB appeal. The federal agency involved also has the opportunity to seek discovery from a federal employee for information relevant to such appeals.    

Types of Documents an Appellant can Seek

There are a number of type of items which can be sought from a federal agency in the course of an MSPB appeal through discovery.  These are generally referred to as “Production of Documents and Things” requests (Production Requests) under 5 C.F.R. § 1201.72 (c).  Production Requests can include requests for copies of relevant electronic mail messages, policies, memorandums, correspondence, audio or video recordings, and copies of investigative reports, when they are relevant to a federal employee’s MSPB appeal.  For instance, in disciplinary actions for federal employees we often request copies of email messages between supervisors or investigators connected with a disciplinary investigation.  Sometimes it may be possible to uncover bias which was the root cause of a disciplinary action (and not the misconduct alleged) or other issues which can be instrumental in defending a federal employee in the MSPB appeals process.

A Few Examples of Production Requests

The following are a few examples of how Production Requests can be used at the MSPB: 

Example 1: Federal employee is removed from federal employment for allegedly assaulting another federal employee in the agency lobby.  

Production Request: A Production Request could include a request for a copy of all videotape footage of the federal agency’s lobby area during the date of the incident, a copy of all statements taken of witnesses to the event (not just those provided at proposed removal stage) and any investigation summary or report prepared.   

Example 2: Federal employee is removed from federal employment based on alleged dishonesty during an investigative interview.   

Production Request: A Production Request could include a request for a copy of any video or audio recordings of the interview, any transcripts made, a copy of all of the questions asked by the investigators, and any summary, notes, emails or documents prepared by the investigator which references the interview.   

Example 3: Federal employee is removed from federal employment for alleged sexual harassment at work.  

Production Request: A Production Request could include a request for a copy of all witness statements taken by investigators as to the alleged sexual harassment, a copy of all recordings made of these interviews, and a copy of all emails generated or received by the complainant which reference the alleged sexual harassment.  

General Thoughts

In general, it is important for a federal employee before the MSPB to take advantage of the discovery process by utilizing  Production Requests.  The amount of information that one can uncover through this process can make all the difference in pursuing a successful appeal.  A federal employee should not be under the impression that they have received all of the information available just because their federal agency had previously provided them wiht documents at the proposal stage (e.g. during a proposed removal).  

A federal agency is only required, during the proposed action stage (prior to a final decision by the agency) to provide an employee with the materials they have relied upon in proposing the action.  This is not the same as providing a federal employee with all important information relevant to the case.  For instance, an agency might provide a federal employee with all of the witness statements that demonstrate misconduct in a proposed removal case, but not other witness statements that are helpful to the employee and disprove the conduct. This is one of the most important reasons that a federal employee should seek information through the discovery process at the MSPB.  

Conclusion

When facing the MSPB discovery process, it is important for a federal employee to have legal advice and representation during the process.  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 at Berry & Berry Facebook Page.

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

Federal employees often ask us what happens during an actual hearing before the Merit Systems Protection Board (MSPB).  A hearing, especially for an unrepresented federal employee, can be a daunting process. This article focuses on what federal employees can expect during a typical MSPB hearing.

Location of the Hearing

Typically, the MSPB hearing takes place with the administrative judge either attending in person or by video-teleconference.  The location for an in-person hearing is typically wherever the MSPB has its local offices.  However, the hearing site might also be located at the employee’s work site.  If the hearing is conducted remotely, then the hearing is likely to be conducted at the Agency’s closest video-teleconference location.  In such a case, it is typical that all parties, witnesses and attorneys will be present at the Agency location and the administrative judge will be the only individual located in a remote location.

Before the Hearing Starts

Before the MSPB hearing begins, the administrative judge will usually ask the parties whether there are any outstanding issues before the hearing begins.  Typically, there are not, but issues could have arisen involving exhibits or witnesses which need to be resolved before the hearing starts.  In addition, the administrative judge may swear in all of the witnesses at the same time (or individually as they testify) and then sequester the witnesses (keep them in a room outside of the hearing) until their testimony is heard.  

Hearings are generally open to the public unless the administrative judge, in their discretion, believes that it would be better to close off either the entire hearing or a portion of it. This decision will be made prior to the start of the hearing.  In addition, before the hearing starts, the court reporter hired by the MSPB will set up his/her equipment and prepare to record the legal arguments, statements, objections and rulings that will occur during the hearing.  

Opening Statements

Following the introductory issues, the administrative judge may permit the parties to present opening statements. Sometimes, the administrative judge does not permit opening statements (especially if time is a concern and there are numerous witnesses).  If permitted, opening statements typically last about 10-20 minutes for each party.  The Agency’s attorney will usually proceed first because they hold the burden of proof (in disciplinary cases).  Then, the Appellant (or Appellant’s attorney) will have the opportunity to respond with an opening statement then or at the beginning of their case.  

The Actual Hearing

Following opening statements, the main portion of the MSPB hearing typically begins.  The Agency will call their witnesses in their case first.  Then the federal employee (referred to as the “Appellant” in an MSPB case) or their attorney will have the opportunity to cross-examine each of these witnesses. When the Agency’s witnesses have been questioned by both parties, the next step in the hearing process is for the Appellant to call their witnesses. 

Once the witnesses have all been questioned, there is the possibility for rebuttal evidence to be presented.  Rebuttal does not occur in every case, but there is sometimes testimony or issues that arise during the course of a MSPB hearing that require another witness (or require the parties to recall a previous witness) to testify. For instance, if the last scheduled witness in a hearing testifies, unexpectedly, that a prior witness had lied in their testimony, it would be important to recall the earlier witness through rebuttal in order to respond.   

Closing Statements or Briefs

Once all witness testimony has been concluded, the next step is generally to present closing arguments.  Again, the Agency will usually proceed first in disciplinary cases and then the Appellant will proceed after that.  Sometimes, if a case has involved a lot of testimony, is complex in some manner or requires legal arguments to be presented to the administrative judge, the parties may submit closing briefs instead of closing arguments.  After the closing arguments or closing briefs have been submitted, the record is considered closed and the case is ready for a decision by the administrative judge.  

After the Hearing

While the timeline for a decision is variable, a decision from an MSPB administrative judge has tended to take anywhere from 2 days after the hearing to 60 days.  Usually, the final decision is issued somewhere around the 30-45 day mark, in our experience.  If the final decision is positive for the federal employee, the next step may be to enforce the terms of the decision.  The Agency may also decide to appeal the decision.  If the Agency is successful in the initial decision, the federal employee may appeal the adverse decision to the full MSPB Board, which consists of a 3-person panel which oversees the MSPB.  

Conclusion

When facing the MSPB process, it is important for a federal employee to have legal advice and representation during the process.  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 at https://www.facebook.com/BerryBerryPllc.

Berry & Berry, PLLC, is proud to announce our latest blog, focusing on federal employment issues that federal employees face on a daily basis.  Please visit our new blog at  http://federalemployeelawblog.com/

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

In our representation of federal employees before the Merit Systems Protection Board (MSPB) one of the major issues that we come across involves whether or not a federal employee has been provided with due process in the processing of a disciplinary or adverse action.  This is very important because when due process has not been properly provided to a federal employee, a federal agency’s final decision can be potentially reversed at the MSPB.  

Federal Employee’s Right to Due Process

Generally, before a federal employee can be disciplined for alleged misconduct or performance deficiencies, they are entitled to due process of law.  The core of due process for disciplinary actions consists of (1) notice of the misconduct or performance issues; and (2) the opportunity to respond to these issues.  Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).  A federal employee must be given a meaningful opportunity to invoke the discretion of the decision maker before a personnel action is finalized.  Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546 (1985). 

Due Process Right to Information Relied Upon by a Federal Agency

A federal agency, if asked by a federal employee, must provide copies of all information relied upon in the processing of a disciplinary action in order to prepare for their response to the proposed action.  Many federal agencies provide this type of information as a matter of course when they issue a proposed disciplinary action.  However, many do not.  This is why it is usually very important, prior to the oral and/or written response to the proposed action for a federal employee to formally request all of the materials relied upon by the agency in proposing the action.  If a federal employee does not do so, then it can be hard to determine exactly what information that the deciding official considered in issuing a final decision.

If a federal agency considers important information in a case that is not provided to a federal employee this fact can be the basis for possible reversal of the action at the MSPB.  New information, not provided to a federal employee is often called “ex parte communications.”  The U.S. Court of Appeals for the Federal Circuit has held that ex parte communications that introduce new and material information about a federal employee’s case to a deciding official constitute a due process violation. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999).

Due Process Necessary for Douglas Factors

The U.S. Court of Appeals for the Federal Circuit, in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011) held that information not provided to an employee regarding penalty determinations (under the Douglas factors) were also subject to due process:

“Ex parte communications that introduce new and material information whether material to the merits of the underlying charge or material to the penalty to be imposed, violate due process. There is no constitutionally relevant distinction between ex parte communications relating to the underlying charge and those relating to the penalty.”

This type of issue can come into play where the federal agency issues a decision on a proposed disciplinary action, citing an increased disciplinary penalty based upon information that was not provided to a federal employee prior to the oral and written response stages.  For example, we have seen cases where a federal employee was given a more significant disciplinary penalty for having a past disciplinary record which was not mentioned in the proposed action. This can be reversible error.

Conclusion

Our law firm advises and represents federal employees in MSPB appeals. We can beached by telephone at (703) 668-0070 or www.berrylegal.com for addition information or to set up a consultation.  

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

When facing a serious disciplinary action as a federal employee, there remain a few choices as to the forum in which to appeal. This post addresses the issue of how to approach a disciplinary appeal involving federal agency removals and significant suspensions (over 15 days) in the forums available to federal employees.  These 2 forums have different procedures, so it is important to know the differences when an employee is faced with evaluating which type of forum to choose

Two Principal Options for Federal Employee Removal/Suspension Appeals: Arbitration or MSPB

When a federal employee receives a copy of a final federal agency decision sustaining a removal or significant suspension (15 days and above) they generally have 2 options if they want to appeal the decision that has been made.  The first potential option for the federal employee is to file an appeal of the removal/suspension with the Merit Systems Protection Board (MSPB).  The second option is to appeal the removal/suspension decision through the federal employee’s federal sector union through the applicable grievance/arbitration procedure.  

There are other potential legal options out there for federal employees outside of the MSPB and arbitration process, when applicable, such as the filing of a whistleblower complaint with the Office of Special Counsel (OSC) or perhaps a complaint alleging discrimination, retaliation or harassment through the federal agency’s Equal Employment Opportunity (EEO) office, but the focus of this article are the main 2 options for a federal employee in appealing the substance of the misconduct allegations which have been sustained by the federal agency involved.  The federal employee will usually only be able to appeal the removal or suspension to only one forum.  Therefore, usually the first one selected will be the forum that the federal employee must usually stay with.   As a result, it is important to evaluate each potential option before filing a grievance / arbitration request or an appeal with the MSPB.  

While many federal employees have a choice between forums, some do not.  While most career (non-probationary) federal employees have the right to appeal a removal or significant suspension to the MSPB, not everyone has the right to take their case to arbitration.  In order for a federal employee to have the right to take their case to arbitration, the federal employee must be represented by a federal sector union that agrees to take the case to arbitration.  If there is no union, then there is generally no right to file for arbitration review of serious discipline.  If this is the case, then the choice between filing with the MSPB and filing for arbitration can be fairly easy to make.  

If a federal employee has the right to file for arbitration through an existing union, then before exercising their options they should confirm whether or not their union will agree to permit arbitration.  Federal sector unions generally control the ability to go to arbitration, not the federal employee, so whether a case can go forward to arbitration is usually up to them.   If a union agrees to take the federal employee’s case to arbitration, then all of the other considerations come into play in order for the federal employee to make a well-informed decision about which forum to choose.

Seeking Information from the Agency in Arbitration and MPSB Appeals

Both arbitration and the MSPB have specific procedures to assist federal employees in attempting to obtain information for use in their appeals. At the MSPB, more typical discovery procedures (similar to those available in court) govern.  A federal employee (generally through counsel) can take depositions, serve production of documents requests, and serve interrogatories on the federal agency involved.  In general, the MSPB tends to have better discovery procedures (especially the use of depositions) than those available in arbitration. 

In arbitration, a federal employee is represented by the union either through a union or private attorney (with the approval of their union).  The union has the ability to request documents relevant to a disciplinary case on behalf of the affected federal employee.  This ability comes through the submission of what is known as a "union information request" pursuant to 5 U.S.C. § 7114(b).  The one key difference between the 2 forums (MSPB and arbitration) is that there generally is no right to take depositions in arbitration proceedings, to request responses to interrogatories or to ask for requests for admission.  

MSPB Hearings vs. Arbitration Hearings

There are also differences between MSPB hearings and arbitration hearings.  For the most part both the MSPB and arbitration hearings tend to be less formal than regular court proceedings.  In our experience, arbitration is the less formal of these two types of hearings.    

In an arbitration, the Arbitrator acts as the judge who will issue the ruling on the federal employee's appeal in the case.  Typically, arbitrators tend to be very experienced attorneys in labor and employment law issues and will be mutually selected by the parties or sit on a regular panel of arbitrators that hear cases between the individual federal agency and the union.  In MSPB cases, the proceedings are run by an appointed Administrative Judge that is assigned to a federal employee's case by the appropriate local or regional office of the MSPB.  

Generally, it takes about 120 - 150 days (this can run longer) from the filing of an MSPB appeal to the time in which a federal employee reaches an MSPB hearing. It will take between a few weeks to a few months after that hearing, usually, for an federal employee to obtain a ruling by the administrative judge.  In arbitration, the timeline can be shorter or longer (depending on what procedures the parties have in their collective bargaining agreement and the dates that the arbitrator may have available for the hearing).  Sometimes, depending on the collective bargaining agreement, the arbitration process must first start in the grievance process and will ultimately move to arbitration, causing the process to run longer.  On average, we find that it takes longer to reach a final decision in the arbitration process than in the MSPB.  

The MSPB hearing is generally held at the MSPB's local regional office, whereas an arbitration hearing can be scheduled any place that the parties agree upon or which is specified in their collective bargaining agreement (they usually take place at the agency). Both proceedings allow for the use of witnesses and examination and cross-examination by counsel.  While the MSPB tends to have better discovery procedures, arbitrators tend to be more open to reversing disciplinary cases in general.

Closing Thoughts

We advise potential federal employees to seek counsel to help them evaluate their individual cases to determine the best type of proceeding, either arbitration or MSPB, that is right for their case.  Both types of proceedings can be valuable for a federal employee facing a choice as to an appeal of serious discipline. We can beached by telephone at (703) 668-0070 or www.berrylegal.com for addition information or to set up a consultation.  

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

Often times our law firm represents federal employees in appeals before the Merit Systems Protection Board (MSPB) involving adverse action cases (i.e. removal actions, suspensions of 15 days or more).  In MSPB appeals, there is generally a 2-stage process undertaken by the administrative judge in their evaluation of an adverse action (disciplinary) appeal: (1) whether or not the allegations by the agency have been proven by a preponderance of the evidence; and (2) whether or not there are mitigating circumstances which could mitigate the disciplinary penalty received. 

As part of the penalty mitigation process, the MSPB has permitted appellants to argue that they received a disparate penalty (as compared to other employees in the agency) for the same conduct.  This article evaluates the situation where a federal employee receives a penalty for certain misconduct that is more severe than a penalty received by other federal employees for similar misconduct. 

Disparate Penalties Explained

A disparate penalty is a disciplinary penalty which is different or out of line with what other similarly situated employees have received for similar misconduct.  For instance, suppose a federal employee has received a proposed removal for misuse of a government credit card.  Further, suppose that other similarly situated employees in the office (and under the same chain of command) have been found to have committed similar misuse but were only given letters of reprimand or were not disciplined at all.  

In such a situation, one can argue at the MSPB, on appeal, that the federal agency provided a disparate penalty to the appellant in an effort to reduce the penalty that was assessed. Consistency of the discipline in such cases is a part of the Douglas factor mitigation analysis.

The MSPB Standard for Disparate Penalties

The MSPB has found that disparate treatment involving disciplinary penalties is a proper issue for federal employee appeals.  See Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012). The MSPB has held that in order to establish that a disparate penalty took place that an appellant must show that there is enough similarity between both the nature of the misconduct and other factors which would lead a reasonable person to conclude that the agency treated similarly-situated employees differently.

In proving the disparate penalty claim, the MSPB has found that an appellant has to establish that the charges and the circumstances surrounding the charged behavior are "substantially similar."  Doing so in the past required proof that the comparable penalty involved an employee in the same work unit, with the same supervisor, who was subjected to the same standards governing discipline. Von Muller v. Dep’t. of Energy, 101 M.S.P.R. 91, ¶ 22, aff’d, 204 F. App’x 17 (Fed. Cir. 2006).  In other words, the principle did not necessarily apply to a case where an employee in another work unit received a different penalty for the same type of misconduct case.  However, the chain of command issue has come under some debate since the Federal Circuit ruled in Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009) (Agency must explain why different chain of command justify a different penalty).  Since Williams, the MSPB has avoided hard and fast rules regarding disparate penalty issues, opting for an overall review of the facts at issue to determine whether a basis exists for the disparate penalty between similar employees with similar misconduct. 

If an appellant is able to demonstrate their disparate penalty claims before the MSPB, the federal agency that took the adverse action must then prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld. Boucher, 118 M.S.P.R. 640, ¶ 20.  In addition, an appellant can raise the disparity of penalties argument based on evidence that similarly situated employees received no discipline after committing similar misconduct.  Fearon v. Dep’t of Labor, M.S.P.R. 428, 434 ¶ 11 (2005). 

In sum, it is important for federal employees that have been disciplined more harshly than other employees for similar conduct to be aware of the potential legal arguments available for their legal defense at both the response stage before their federal agency and before the MSPB on appeal.  

Contact Us

When facing an MSPB appeal involving the issue of disparate penalties it is important to obtain legal representation. Our law firm represents federal employees in the MSPB process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  

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. 

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

When filing an action with the Merit Systems Protection Board (MSPB), a federal employee has a number of steps to complete in order to properly submit their MSPB appeal.  If these steps are not completed, an appeal (or important portions of the appeal) may not be accepted or considered by the MSPB for review.

Filing Timelines

The most important aspect to filing an MSPB appeal is to do so in a timely fashion.  The filing of an MSPB appeal begins with the MSPB Form 185 (last updated on May 13, 2013).  Generally, the form (and appeal) must be filed within 30 calendar days of the effective date of the action.  For example, if an employee receives a final action effective (e.g. final decision upholding a proposed removal or suspension) on July 31, 2013, their filing due date for an appeal would be August 30, 2013.  If the date that the
appeal is due falls on a weekend or holiday, that could provide an extension to file the appeal.  The key for a federa; employee seeking to appeal is to not delay and file the appeal close to the deadline. If an appeal is found to be untimely, then it will be dismissed and no further action will be taken.  It is far better to file one’s appeal as far away from the deadline as possible to avoid these issues. 

Filing with the Correct Office of the MSPB

It is also important, when filing, to file your appeal with the correct MSPB office. Currently, there are 8 regional or field offices of the MSPB.  It is important to determine which office one’s appeal must be filed with prior to filing your appeal.  The office for filing is determined by a federal employee’s duty station.   For instance, if one is employed by a Virginia office of a federal agency, then the proper office to file one’s appeal with would be the Washington Regional Office of the MSPB. 

Electronic Filing of the MSPB Appeal

Electronic filing of initial MSPB appeal forms is slowly, but surely, becoming universal.  Our law firm uses electronic filing from the filing of the appeal to the end of the process.  It is helpful and easier than that the previous mailing system.  The key to preparing the electronic filing of the MSPB appeal is to have all relevant information related to the appeal available when completing the online forms.  Once the online forms have been prepared, and all attachments submitted (i.e. the proposed action and final agency decision), then the appeal can be electronically submitted to the MSPB.  Once the appeal is electronically submitted, the e-filer will receive confirmation of the filing from the MSPB.  Following the proper submission of the appeal, the federal employee and the federal agency involved will receive an Acknowledgment Order which sets forth the procedures and initial deadlines for processing an MSPB appeal. 

Proper Completion of the MSPB Appeal Forms

Properly completing the MSPB initial appeal is very important.  We strongly advise
clients to have an attorney review and prepare the initial appellate filing.  It is important to present a well prepared appeal at the beginning of the process.  Doing so provides a federal employee with the best chance of litigating or settling their appeal.  A well prepared filing enables an Administrative Judge the ability to analyze an appeal and advise the parties on settlement early in the process.  A thoroughly prepared appeal also puts the federal employee in the best position to litigate his or her case to a hearing if the Administrative Judge understands a federal employee’s legal arguments at the start of the case.  If the Administrative Judge does not understand the appeal filed from the federal employee's initial filing, he or she is less likely to focus in on all of the potentially key legal arguments and important issues that could be raised in the case by the Appellant. 

Conclusion

When filing an MSPB appeal it is important to obtain the advice of counsel before filing the initial appeal. Our law firm stands ready to represent and advise federal employees on issues and appeals before the MSPB.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.