U.S. Merit Systems Protection Board 
Case Report for October 7, 2016 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Gregory Turner
Agency:  U.S. Postal Service
Decision Number:  2016 MSPB 35
Docket Numbers:  AT-0752-15-0199-I-1; AT-0353-14-0838-B-1
Issuance Date:  October 4, 2016
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Adverse Action

Dismissal - Failure to Prosecute

    The appellant petitioned for review of the initial decisions in these two cases, each of which dismissed the appellant's appeal for failure to prosecute.  In each appeal, the administrative judge issued four separate orders directing the appellant to provide information or to participate in a telephonic status conference.  Each of these orders was sent to the appellant's address of record.  The appellant failed to respond to any of the orders.  

Holdings:  The Board denied the appellant's petitions for review and affirmed the initial decisions:

1. The sanction of dismissal with prejudice may be imposed if a party fails to prosecute or defend an appeal.  The imposition of such a severe sanction may be used only when necessary to serve the ends of justice, as when a party has failed to exercise basic due diligence in complying with an order, or has exhibited negligence or bad faith in his efforts to comply.  

2. The Board will not reverse an administrative judge's determination regarding the imposition of sanctions
absent a showing of abuse of discretion.  The Board found that the administrative judge did not abuse her discretion in imposing the sanction of dismissal with prejudice in these cases.  




COURT DECISIONS

Petitioner:  Lamonte L. Purifoy
Respondent:  Department of Veterans Affairs
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3196
Issuance Date:  October 4, 2016

Penalty
 - Douglas Factors
 - Credibility Determinations - Deference to Presiding Officials

    The court reviewed the Board's decision to affirm the agency's removal action based on two charges of extended unauthorized absence.  In 2013, Purifoy missed two days of work as a housekeeping aid in a VA medical center without authorization.  Later that same week, he sought treatment for substance abuse from the VA medical facility where he worked.  Purifoy verbally informed his supervisor that he would miss work but did not fill out leave paperwork.  Nor did he inform his parole officer that he would miss upcoming supervision visits.  After the parole officer issued a warrant for Purifoy's arrest, Purifoy contacted the parole officer and explained that he had been admitted to a VA medical center for substance abuse treatment, but she refused to withdraw the warrant, and he was told to report to a correctional facility.  Purifoy agreed to enter substance abuse treatment at the correctional facility as an alternative to the revocation of his parole.  He entered the program, but was terminated after an altercation with another inmate.  He remained an inmate at the correctional facility for 38 more days.  Following his release, Purifoy returned to work, but the agency removed his from employment as a penalty for his unexcused absences.  

     After an in-person hearing on appeal to the Board in which Purifoy represented himself, the administrative judge sustained the first charge in full -- unexcused absence for two days in April 2013 -- but sustained the second charge -- unexcused absence for 6 months while at the correctional facility -- only in part, finding that only the final 38 days of this absence was unexcused.  The administrative judge determined the removal penalty to be unreasonable and reduced it to a 40-day suspension.  The judge explained that Purifoy's absence "was less severe than the six months absence the Agency had originally charged," and that that this was his first disciplinary offense.  The judge examined the remaining Douglas factors and found that each weighed in favor of mitigation.  The judge found that Purifoy's potential for rehabilitation was high, as he went to great lengths to notify the agency of his whereabouts and, since his release from the correctional facility, had continued to participate in treatment for substance abuse without relapse.  The judge commented that "[i]t is ironic that the appellant's enrollment, with the agency's blessing, in a substance abuse program conducted by the agency ultimately led to his removal by the agency."  The Board granted the agency's petition for review and reinstated the removal penalty.  In doing so, the Board analyzed some, but not all, of the Douglas factors.  It found that, contrary to the administrative judge, most of the factors weighed against Purifoy.  Although it noted that Purifoy's seeking treatment for a disabling condition had been considered to be a mitigating factor, "this factor was not significantly mitigating as the appellant was not fully pursuing rehabilitation for his problem."  

Holdings: Finding that the Board's analysis improperly omitted relevant Douglas factors and discarded the administrative judge's credibility determinations without an adequate rationale, the court vacated the Board's judgment and remanded for further adjudication:

1. Although the court has repeatedly recognized that the Board need not consider all the Douglas factors in each case, it must consider the relevant ones.  

2. The Board failed to properly consider the adequacy and effectiveness of alternative sanctions to deter similar misconduct in the future.  This factor was plainly relevant in this case, as the administrative judge had determined that the agency's removal penalty was too severe, and that a 40-day suspension would adequately punish his absence and deter similar misconduct in the future.  

3. As to the rehabilitation factor, the Board substituted its own finding for the administrative judge's opposite one without adequate rationale.  

a. The administrative judge had found that Purifoy's potential for rehabilitation was high, stating that the record reflected that he cares about his job, went to great lengths and took all available measures to notify his agency of his whereabouts and, though he did not complete the program at the correctional facility, he has continued to participate in treatment and has not suffered a relapse.

b. The judge made these findings in view of Purifoy's live testimony and his extensive pro se cross-examination of the government's witnesses.  The judge heard Purifoy testify under oath that he attends Alcoholics Anonymous meetings 3 days a week and that he has not suffered a relapse since his removal.  The Board's "bare conclusion" that Purifoy was "not fully pursuing rehabilitation for his problem" gave insufficient consideration of, and deference to, the judge's findings.

c. The MSPB must afford special deference to the presiding official's findings respecting credibility where the official relies expressly or by necessary implication on the demeanor of witnesses.  The Board is not free to overturn an administrative judge's demeanor-based credibility findings merely because it disagrees with those findings.  Even though the judge did not explicitly discuss demeanor, her findings about Purifoy's propensity for rehabilitation were necessarily intertwined with issues of credibility and an analysis of his demeanor at trial, and they deserved deference from the Board.  




The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Hearn v.Department of the Army, No. 2013-3137 (Oct. 4, 2016) (MSPB Docket No. NY-0731-12-0120-I-1) (dismissing Hearn's appeal of the Board's affirmance of the agency's suitability action for lack of jurisdiction because it was untimely filed)

Shik v. Merit Systems Protection Board, No. 2016-2102 (Oct. 5, 2016) (MSPB Docket No. NY-3443-16-0034-I-1) (affirming the Board's decision, which dismissed Shik's claim of a constructive demotion for lack of jurisdiction)

Kibler v. Merit Systems Protection Board, No. 2016-2218 (Oct. 6, 2016) (MSPB Docket No. DC-0752-15-0915-I-1) (affirming the Board's decision, which dismissed Kibler's claim of an involuntary resignation for lack of jurisdiction)

El v. Merit Systems Protection Board, No. 2016-1557 (Oct. 6, 2016) (MSPB Docket No. DC-1221-15-0730-W-1) (affirming the Board's decision, which dismissed El's IRA appeal for lack of jurisdiction)

Hocson v. Office of Personnel Management, No. 2016-1658 (Oct. 6, 2016) (MSPB Docket No. SF-0831-15-0462-I-1) (affirming the Board's decision, which affirmed OPM's determination that Hocson is not entitled to a deferred retirement annuity)


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