U.S. Merit Systems Protection Board 
Case Report for April 12, 2013

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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:  James K. Portner
Agency:  Department of Justice
Decision Number:  2013 MSPB 28
Docket Number:  CH-0752-11-0497-I-1
Issuance Date:  April 5, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Penalty
 - Disparate Penalties
 - Falsification
 - Potential for Rehabilitation


    The appellant petitioned for review of an initial decision that affirmed the agency's removal action.  The appellant was a GS-14 Supervisory Diversion Group Investigator with the Drug Enforcement Administration.  He was removed on charges of making false statements (3 specifications) and unauthorized use of an official government vehicle.  The underlying facts were not disputed.  The appellant made false statements to his supervisor, a subordinate, and to a local police officer about when and under what circumstances his official government vehicle was damaged while he was in a temporary duty status away from his normal place of duty.  He also misused the official government vehicle by driving it after consuming two beers, which was contrary to agency policy.  (There was no allegation that the appellant drove the vehicle while intoxicated.)  Following a hearing, the administrative judge found that the agency proved its charges, that there was a nexus between the charged behavior and the efficiency of the service, and that the removal penalty was within the bounds of reasonableness.  With regard to the penalty determination, the judge found, among other things, that:  The appellant was not similarly situated with respect to other employees who the appellant claimed had received lesser punishment for similar offenses; the fact that the appellant corrected his lies when he realized he would be caught is not good evidence of rehabilitative potential, nor was the fact that he did not divulge his misuse of the government vehicle until long after the incident in question; and although the appellant showed that he received treatment for a psychiatric condition (a panic attack), he did not show that this condition played a part in his misconduct.  

Holdings:  A majority of the Board, Member Robbins dissenting, mitigated the penalty to a 45-day suspension:

1. The agency proved the charged misconduct and the existence of a nexus between the misconduct and the efficiency of the service.

2. Because the deciding official failed to properly weigh the relevant Douglas factors, in that he erred in finding that the appellant lacked rehabilitative potential because he failed to demonstrate remorse for his misconduct, the agency's penalty determination is not entitled to deference.

3. A 45-day suspension is the maximum reasonable penalty for the appellant's misconduct in light of all of the attendant circumstances.

a. The majority recognized that falsification is a serious offense and that the appellant can be held to a higher standard of conduct because of his status as a supervisor.

b. Mitigating factors in this case include that the incident occurred while the appellant was experiencing extreme stress from various personal and professional matters, including marital problems, child custody issues, being passed over for a promotion, and being the subject of an EEO suit by a subordinate employee.  In addition, the majority credited the appellant's testimony and other evidence that indicated that he suffered a panic attack when he discovered that his official government vehicle had been damaged.  The appellant had over 24 years of federal service, which had been mostly above the successful level.  The majority also noted that, despite the fact that the appellant worked for a law enforcement agency, he was not a law enforcement officer.  This was significant because the deciding official expressed concern that the appellant's discipline for making false statements would be subject to disclosure to a criminal defendant.  

c. The appellant was treated disparately compared to 3 comparators who had not been removed for offenses that were as serious or more serious than the appellant's misconduct.

     In a dissenting opinion, Member Robbins stated that he would have sustained the agency's removal action because the agency properly considered all relevant factors and exercised its management discretion within tolerable limits of reasonableness.  In addition to expressing his disagreement with the Board's recent precedent on disparate penalties, Member Robbins expressed the following disagreements with the majority's findings:  (1) the deciding official properly and conscientiously considered the appellant's lack of remorse as an aggravating factor affecting his potential for rehabilitation; (2) the majority erred in considering the appellant's panic disorder as a mitigating factor; the evidence showed that it was being caught having lied that caused the panic attack, not having discovered minor damage to his government vehicle; and (3) the majority erred in finding that the appellant received a disparate penalty compared to comparative employees.  Regarding this last matter, Member Robbins noted that the only offense the 3 comparators had in common with the appellant was misuse of a government vehicle, which was the less serious offense in this case; none of the comparators had engaged in falsification.  He stated that the majority had converted an analysis of the "consistency of the penalty with those imposed upon other employees for the same or similar offenses," the test set out in Douglas, into an analysis of the consistency of the penalty with those imposed upon other employees for what the majority considers to be comparable offenses.  He stated that there is no support in case law or public policy for such an approach.  Finally, he noted that, while the appellant is not a law enforcement officer, he works for a law enforcement agency and he lied to a law enforcement officer.  Member Robbins stated that it is hard to imagine an offense that goes more directly to the heart of a law enforcement agency's trust and confidence in a supervisor than lying to a law enforcement officer.



COURT DECISIONS


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

Kent v. Department of the Air Force, No. 2013-3034 (April 5, 2013) (MSPB Docket No. AT-0752-10-0652-B-1) (affriming the Board's decision, which dismissed the appeal of a removal action as settled)

Burroughs v. Department of the Army, No. 2012-3195 (April 5, 2013) (MSPB Docket No. SF-3330-12-0255-I-1) (affirming the Board's decision, which denied Burroughs' request for corrective action in this USERRA appeal)

Snowden v. Department of the Interior, No. 2012-3153 (April 8, 2013) (MSPB Docket No. DC-0752-10-0802-B-1) (affirming per Rule 36 the Board's decision, which dismissed Snowden's appeal for lack of jurisdiction on the basis of a valid last-chance settlement agreement)

Honea v. Merit Systems Protection Board, No. 2012-3199 (April 8, 2013) (MSPB Docket No. DE-315H-11-0178-I-1) (affirming the Board's decision, which dismissed Honea's appeal of the termination of his employment for lack of jurisdiction)

Wagoner v. Office of Personnel Management, No. 2013-3006 (April 8, 2013) (MSPB Docket No. CH-0831-11-0115-B-1) (affirming the Board's decision, which affirmed OPM's determination that Wagoner was not eligible for retirement benefits under the Civil Service Retirement System)

Maiers v. Department of Health & Human Services, No. 2012-3184 (April 8, 2013) (MSPB Docket No. DC-4324-11-0851-I-1) (affirming the Board's decision, which denied Maiers' request for corrective action in this USERRA appeal)

Schilleci v. Office of Personnel Management, No. 2012-3188 (April 8, 2013) (MSPB Docket No. AT-0845-11-0786-I-1) (affirming per Rule 36 the Board's decision, which affirmed OPM's determination that Schilleci was not entitled to waiver of repayment of an overpayment)

Charles v. Merit Systems Protection Board, No. 2012-3196 (April 8, 2013) (MSPB Docket No. NY-0353-11-0263-I-1) (affirming the Board's decision, which dismissed an appeal under the doctrine of collateral estoppel)

Anthony v. Office of Personnel Management, No. 2013-3018 (April 9, 2013) (MSPB Docket No. AT-844E-12-0345-I-1) (affirming the Board's decision, which dismissed this retirement dispute for lack of jurisdiction)

Payton v. Merit Systems Protection Board, No. 2013-3011 (April 10, 2013) (MSPB Docket No. AT-0353-11-0956-I-1) (affirming the Board's decision, which dismissed Payton's appeal of the denial of her request for restoration of duty as barred by collateral estoppel)

Camp v. Department of Veterans Affairs, No. 2013-3008 (April 10, 2013) (MSPB Docket No. SF-0752-12-0714-I-1) (affirming the Board's decision, which dismissed the appeal of a removal for lack of jurisdiction because the matter had been resolved in a binding settlement agreement)

MacNeill v. Merit Systems Protection Board, No. 2012-3175 (April 10, 2013) (MSPB Docket No. DA-0752-11-0587-I-1) (affirming the Board's decision, which dismissed MacNeill's appeal as untimely filed)

FEDERAL REGISTER NOTICE

     On April 11, 2013, the Merit Systems Protection Board (MSPB or Board) issued an interim final rule that will allow federal agencies, when issuing a decision notice to an employee on a matter that is appealable to the Board, to satisfy the obligation to provide a copy of the MSPB appeal form to an employee by providing the employee with access to a copy of the appeal form, i.e., in paper or electronic form.  78 Fed. Reg. 21517.  The Federal Register notice stated that the impetus for this action was the realization that, under current regulations, federal agencies that furlough their employees as a result of the implementation of government-wide "sequestration" on March 1, 2013, would be required to distribute potentially hundreds of thousands of copies of the 9-page MSPB appeal form.  The existing regulations were not drafted with such a situation in mind.  Moreoever, widespread access by federal employees to the Internet, electronic mail, and MSPB's electronic filing system, ensure, in the vast majority of cases, that the distribution of thousands of paper copies of the MSPB appeal form by federal agencies is unnecessary.  The interim final rule is effective immediately.  Written comments regarding the rule must be submitted to the Clerk of the Board on or before May 13, 2013.  

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