U.S. Merit Systems Protection Board
Case Report for May 30, 2014

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Appellant:  Roger Dean Dye  
Agency:  Department of the Army
Decision Number:  2014 MSPB 36
Docket Number:  PH-0752-13-2242-I-1 
Issuance Date:  May 23, 2014
Appeal Type:  Adverse Action
Action Type:  Furlough

Spithaler Remand Based on Insufficiently Developed Record
Exemption from Furlough Action

The appellant was furloughed for 6 days from his GS-12 Construction Contract position with the U.S. Army Corp of Engineers.   The agency's overall furlough plan designated that all employees whose labor was charged in part to the DOD-Military budget code would be furloughed for six days. The agency plan made exceptions for employees whose labor costs were 100% charged to Civil Works Projects and/or Intelligence Community funding sources, and determined that this group of employees would not be furloughed.  The appellant asserted that the agency relied on erroneous Unite Identification Codes on his SF-50 to inaccurately reflect his work and that he should have been excluded from the furlough because 100% of his labor during the relevant period was charged to Civil Works projects during the furlough period and that, thereafter and until the present, he worked exclusively on projects funded solely with National Intelligence Program resources.  After consolidating this case with  other appeals from this work unit, the AJ affirmed all of the furlough actions, finding:  (1) that the factual basis for the furlough actions was supported by preponderant evidence, (2) that the furloughs constituted a reasonable management solution to the impact of sequestration and promoted the efficiency of the service, and (3) that none of the appellants submitted evidence contrary to the agency's evidence that would contravene the overall finding that all the furlough actions should be affirmed.    

Holding:   The Board granted the appellant's petition for review, vacated the initial decision, and remanded the case for further adjudication and development of the record on the issue of whether the appellant's labor functions during the furlough period should have entitled him to an exemption from the furlough.  

1.  The Board found, under the authority of Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980), that a remand was required because the  AJ did not address the appellant's contention that he was entitled to a categorical exemption from the furlough, and that the agency improperly furloughed him because it incorrectly characterized the funding sources for his work.  

2.  An agency has authority under 5 U.S.C. 7512(5) and 7513(a) to furlough an employee for 30 days or less only for such cause as will promote the efficiency of the service.  The meaning of "such cause," as it pertains to a furlough appeal, means that the appellant met the criteria established by the agency for being subject to, and not excepted from, the furlough.  Citing to Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318 (2010)
and Clark v. Office of Personnel Management, 24 M.S.P.R. 224, 225 (1984).  In relying on its decision in Chandler v. Department of Treasury, 2013 M.S.P.R. 74 (2013), the Board restated that the agency's burden of establishing that a furlough promotes the efficiency of the service is met by generally showing that the furlough was a reasonable management solution to the financial restrictions place on it, and that the agency applied its determination as to which employees to furlough in a fair and even manner.  

3.   Here, the Board found that the parties did not adequately present evidence and argument relating to whether the appellant should have been subjected to the furlough, or whether he met the criteria for an exemption. A remand is required to develop the record evidence as necessary and appropriate on this point.  
Pursuant to 5 C.F.R. 1201.36(a), this appeal was part of a consolidation, ACE Balt. Pro Se No Hearing v. Department of the Army, MSPB Docket No. PH-0752-13-5926-I-1, but pertains only to the individual appellant.  

Appellant:  Christopher J. Chavez
Agency:  Small Business Administration
Decision Number:  2014 MSPB 37
Docket Number:  DE-0752-11-0319-I-2 
Issuance Date:  May 28, 2014
Appeal Type:  Adverse Action
Action Type:  Removal

Lack of Candor
Mitigation Improper Use Government Computer Sexually Oriented Images
Proper Application of Relevant Douglas Factors
       -agency violation of Douglas by withholding comparator evidence from deciding           official.
        -Use of relevant comparator evidence stemming from same investigation
        -Consideration of post removal comparator evidence
        -Reassignment as part of penalty
        -Consideration of length of service as aggravating factor

The agency initiated an internal investigation into an allegation that an employee was creating a hostile working environment.  The investigation revealed that the appellant and numerous other employees were sending and receiving sexually explicit material on their work computers using their agency email addresses.  As a result of the investigation, the appellant was removed from the position of Public Affairs Specialist, GS-13, based on two charges:  (1) improper use of a government computer based on 22 specifications of the appellant sending sexually oriented images and videos from his work computer; and (2) lack of candor during an internal agency investigation pertaining to an allegation that a coworker was creating a hostile work environment.  The administrative judge (AJ) sustained the charged misconduct but mitigated the removal based in part on a finding that the deciding official failed to properly weigh all of the Douglas factors.  In support of this finding, the AJ concluded:  (1) that he agency erred in not providing the deciding official with comparator information he requested about the factual circumstances of the other employees who were found to have committed similar misconduct arising from the same investigation; and (2) that the deciding official impermissibly construed the appellant's length of service as an aggravating factor in his penalty determination.   The AJ
concluded that although the appellant held a prominent position and the charges were serious, the maximum reasonable penalty for the sustained misconduct was a 60 day suspension, demotion, and the agency's option to reassign the appellant to another position, based on the appellant's lack of disciplinary record, tenure with agency, and rehabilitative potential, combined with the fact that he had been working in an environment where agency management condoned the emailing of sexually oriented materials by employees for a number of years.  

Holding:  The Board affirmed the initial decision in part and vacated in part, but sustained the AJ's mitigation of the removal to a 60-Day suspension and a reduction in grade, vacated the AJ's finding that the deciding official improperly construed the appellant's length of service as an aggravating factor, and vacated that portion of the penalty determination pertaining to optional reassignment to a different position for which the appellant was qualified.  

1.    In sustaining the AJ's finding that the agency's lack of candor charge was established, the Board relied on Ludlum v. Department of Justice, 87 M.S.P.R. 56 (2000), 278 F.3d 1280, 1284 (Fed. Cir. 2002) to conclude that a charge of lack of candor is a broad an flexible concept whose contours and elements depend on the particular context and conduct involved.   While a charge of lack of candor does not require proof of intent, the crux of the charge is established by a showing of a failure to disclose something, that, in the circumstances, should have been disclosed in order to make a given staatement accurate and complete.  Here, and as illustrated by the Board's decision in Hoofman v. Department of the Army, 21 M.S.P.B. 107 (2012), the Board noted that the charge is proven because the appellant's incomplete response to agency investigatores left them with the impression that he had never receivced sexually explicit emails from co-workers when, in fact, he had received them.

2.   The Board affirmed the AJ's finding that the agency violated the Douglas standard when its Office of Human Resources declined to provide the deciding official with information about the factual circumstances of other employees who were found to have sent sexually explicit emails on government computers as part of the same investgation that lead to the appellant's removal.  

3.  The Board held that although a deciding official does not have to consider each of the Douglas factors in making his penalty determination, its opinion in Portner v. Department of Justice, 119 M.S.P.R. 365 (2013), requires the deciding official to consider the relevant Douglas factors which are implicated in the case before him.    Inasmuch as the appellant raised the issue of disparate penalties, and the deciding official may consider the consistency of the penalty with those imposed upon other employees for the same or similar offenses, the agency's Office of Human Resources violated Douglas by denying the deciding official comparator information about employees whose misconduct was discovered during the same investigation that lead to the appellant's disciplinary aaction.  Thus, the agency prevented the deciding official from undertaking a conscientious consideration of the consistency of the penalty by withholding the information he requested.   Citing to Williams v. Social Security Administration, 586 F.3d 1365, 1368 (Fed. Cir. 2009), Boucher v. U.S. Postal Service, 118 M.S.P.R. 640 (2012), and Taylor v. Department of Veterans Affairs, 112 M.S.P.R. 423 (2009).

4.  Although it is improper to consider the employee's length of service as an aggravating factor in a Douglas penalty analysis, the Board concluded that the AJ erred in concluding that the deciding official misconstrued this Douglas factor because there was insufficient record evidence to support this finding.

5.  The Board distinguished its decisions in Von Muller v. Department of Energy, 101 M.S.P.R. 91, aff'd 204 F. App'x 17 (Fed. Cir. 2006), and Social Security Administration v. Steverson, 111 M.S.P.R. 649 (2009), aff'd 383 F. App'x 939 (Fed. Cir. 2012) as it pertained to the holding that removal be imposed when there is an aggravating factor in that the employee holds a high level position interacting with the public and disseminates sexually explicit information outside the agency.  Here, the Board agreed with the AJ that removal was not appropriate because, although the AJ acknowledged this aggravating factor, other mitigating factors such as the appellant's rehabilitative potential, his lack of disciplinary history, and the absence of clarity that the appellant's conduct violated agency policies in light of management's past tolerance of such actions weighed against removal.  

6.   Although there was comparator evidence of disparate penalties involving employees who received  suspensions of less than 14 days for misconduct stemming from the same investigation, the AJ correctly found that the appellant was charged with more serious misconduct than the referenced comparators, and thus a more serious penalty was justified.  In this regard, the Board noted that its precedent in Spahn v. Department of Justice, 93 M.S.P.R. 195 (2003) does not require a deciding official to consider the universe of conduct that was both charged and that could have been charged against putative comparators involved in adverse actions stemming from the same investigation, but that only the charged misconduct in assessing whether the comparators are substantially similar is relevant.  

7.  The Board relies on Norris v. Securities Exchange Commission, 675 F.3d 1349, 1357 (Fed. Cir. 2012) to hold that the Board should consider post-removal comparator evidence in a penalty analysis and the Board will consider post removal comparator evidence for the first time on review where both the appellant and the subsequent comparator were disciplined as part of the same agency investigation.  Here, the Board finds that the new comparator evidence was entitled to little weight as a mitigating factor because a significant amount of time elapsed from the time the appellant's removal occurred and the post-removal evidence presented, and thus the comparison of events which are attenuated are less persuasive than a comparison of those which share a closer temporal nexus. Further, the Board found that the factual predicate from the subsequent comparator showed that the comparator was disciplined by different agency officials and the appellant held a higher position with significantly different responsibilities than the subsequently disciplined comparator.  Finally, the Board found that the appellant's charged misconduct was more serious because he disseminated inappropriate emails outside of the agency and the subsequent comparator only sent emails to his own email address.  

8. The Board found that the AJ erred in determining that the appropriate penalty should include an option for the agency to reassign the appellant to a different position to which he was qualified because this was not supported by appropriate factual findings.  See Wilson v. Department of Veterans Affairs, 74 M.S.P.R. 65, 69 (1997).     

The U.S. Court of Appeals for the Federal Circuit did not issue any precedential or nonprecedential decisions this week.

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