I. General Principles 

Neither Congress nor OPM has attempted to define appropriate "cause" for adverse action. As long as discipline for the charge will promote the efficiency of the service, action may be brought. Penaloza v. DHHS, 4 M.S.P.R. 322 (1980). Adverse action charges are not to be technically construed. See Johnston v. GPO, 5 M.S.P.R. 354 (1981), Spearman v. USPS, 44 M.S.P.R. 135, 139 (1990), and Acree v. Treasury, 80 M.S.P.R. 73 (1998).

While charges need not follow any particular form, the employee must receive notice of the reasons for the agency’s action that is adequate to allow an informed reply. See for instance, Mason v. Navy, 70 M.S.P.R. 584 (1996), Pope v. USPS, 114 F.3d 1144 (Fed. Cir. 1997), and Lachance v. MSPB 147 F.3d 1367 (Fed. Cir. 1998), referred to hereafter as Crouse III. See also Stone v. FDIC, 179 F. 3d 1368 (Fed. Cir. 1999).

All elements of the charge actually brought must be proved. See, What Is an Element? below.
 
 

II. What is a Charge?

A. Independent Acts Are Separate Charges. See Chauvin v. Navy, 38 F.3d 563 (Fed. Cir. 1994), and Fairley v. Postal Service, 63 M.S.P.R. 545 (1994).

B. One Act May Be the Basis for More than One Charge. The key issue is whether the charges are based on genuinely different reasons with different burdens of proof. Cumulative charges (usually seeking a higher penalty) are not justified on the basis that one act of misconduct may be characterized several ways, or was repeated, predictably, several times. This is sometimes called "piling on." See Southers v. VA, 813 F.2d 1223 (Fed. Cir. 1987); Special Counsel v. Mangan, 33 M.S.P.R. 392 (1987); Ibarra v. Air Force, 11 M.S.P.R. 110 (1982). But see, e.g., Jackson v. Army, 52 M.S.P.R. 1 (1991) Miles v. Army, 55 M.S.P.R. 633, 636 (1992), and Christiansen v. Postal Service, 51 M.S.P.R. 681 (1991), aff’d. 979 F.2d 216 (Fed. Cir. 1992), which did allow two charges because they constituted separate offenses with different burdens of proof.

C. An Agency May Give Alternative Characterizations of a Charge. The agency may find the evidence proves one of two things, either of which warrants action. When it gives alternative charges, the third party should consider whether either has been proven. See Crouse III, cited in Section I above. While one characterization may be more serious than the other, that is relevant to penalty assessment and not to substantiation of the charge. 
 

III. What Is an Element?

The elements of a charged offense must be proven in order to prove the charge. See Messersmith v. GSA, 2 M.S.P.R. 150 (1981), and King v. Nazelrod and MSPB, 43 F.3d 663 (Fed. Cir. 1994). Further, the Board will not sustain an action on the basis of a charge that could have been brought but was not. 

A. Some Elements Are Inherent in the Charge Brought. The Nazelrod holding dealt with an element, intent, that was inherent in the charge brought. Criminal offenses like theft, perjury, or embezzlement always have such inherent elements. If the agency cites a particular statute, the language of the statute defines the burdens. See Heath v. DOT, 64 M.S.P.R. 638 (1994). If not, common law definitions may be applied, as in Nazelrod. Both of these cases involved a charge of "theft," but in Heath the agency did not have to prove intent to permanently deprive because that was not an element of the Title 18 section it cited. A number of non-criminal charges have inherent elements too, derived from case law. The most common are discussed briefly in Section V.
 

B. Sometimes the Elements Derive from the Way the Charge Is Written. The way you write the charge determines what you have to prove. The key case is Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990), which holds that where a charge consists of more than one element, each element must be proven by a preponderance of the evidence to sustain the charge. Read Burroughs and count the number of specific things the agency had to prove to defend a single charge! Also see Diaz v. Army, 56 M.S.P.R. 415 (1993) for a compendium of cases applying Burroughs, and for useful discussion of the (often difficult) distinction between charges and specifications (which are defined below). Weaver v. USDA, 55 M.S.P.R. 569, 576-77 (1992), holds that the Burroughs rule applies to third parties, and not to an agency. The deciding official may sustain only part of a proposed charge, and the sustained portion is then what the agency acts on and must defend. 
 
 
 

IV. What Is a Specification?

The factual information you supply about your charge, the specifications, are distinguishable from the elements of the charge. If any of the specifications supporting a charge are proved, the charge can be sustained. See, for instance, Royster v. Justice, 58 M.S.P.R. 495 (1993). Only so much of the specification as necessary to prove the essence of the charge need be proven. Green v. Navy, 61 M.S.P.R. 626 aff’d, 36 F.3d 1116 (Fed. Cir. 1994) (Table) and Otero v. USPS, 73 M.S.P.R. 198 (1997). 

However, when a charge is very general and unspecific, a third party must look to the specification(s) to determine the true elements of the charge. See Huisman v. Air Force, 35 M.S.P.R. 378 (1987) and Crouse III, cited in Section I, above.
 
 

 
V. Common Reasons for Action

Some charges have particular burdens of proof established in case law. A few examples follow. These references are by no means exhaustive, nor are these all the categories for which specific burdens have been articulated. 

A. Physical inability to do the job - 
Owens v. Air Force, 8 M.S.P.R. 580 (1981) - An agency cannot rely solely on the existence of a disabling condition. It must show a link between the medical condition and observed deficiencies in work performance or behavior, or a high probability of hazard to the employee or others because of the kind of work the employee does. The Board has recently made it clear that the agency must explicitly state whether it is presenting evidence of observed deficiencies or of the high probability of injury to the employee or others. Schrodt v. USPS, 79 MSPR 609 (1998). Street v. Army, 23 M.S.P.R. 335 (1984) - even if the employee was disabled at the time of the action, it does not promote the efficiency of the service to remove him where at the time of his hearing he has recovered. Nor does it promote the efficiency of the service where the appellant can be accommodated - Cason v. NASA, 37 M.S.P.R. 261 (1988). Removal does not promote the efficiency of the service if the employee was promoted from a job he could do to one he could not. In that case, demotion back to the prior position is appropriate. Vidal v. USPS, 143 F.3d 1475 (Fed. Cir.1998). 
 

B. Approved leave - 
An action may not normally be taken on the basis of approved leave - Webb v. USPS, 10 M.S.P.R. 536 (1982) - but that leave record may be raised as a factor relevant to the agency’s selection of penalty. Cook v. Army, 18 M.S.P.R. 610 (1984), sets out the criteria that must be met for use of approved leave as a basis for removal. While employees have a right to use sick leave as needed, 5 C.F.R. 630.401, the agency can require the submission of administratively acceptable evidence for an absence of any duration. 5 C.F.R. 630.403. Rison v. Navy, 23 M.S.P.R. 118 (1984). 

An agency may charge an employee with failure to follow leave requesting procedures as a separate charge from AWOL, so long as the employee was on notice of the procedures he was expected to follow. Wilkinson v. Air Force, 68 M.S.P.R. 4 (1995). However, distinguish Westmoreland v. DVA, 83 M.S.P.R. 625 1999. In that case, the Board applied the long-standing charging rules explained in II B, above, and found the two charges must be merged because the agency gave as its sole reason for the AWOL charge the employee’s failure to follow leave requesting procedures. In supporting the two charges, an agency must distinguish the lack of approval that supports the one charge from the failure to follow specific rules that supports the other.
 

C. Falsification - 
The major element to be proved is intent. Filson v. Transportation, 7 M.S.P.R. 125 (1981) - intent is a state of mind and will generally be established through circumstantial evidence. Naekel v. Transportation, 782 F.2d 975 (Fed. Cir. 1986) - Proof of falsification requires a showing that the employee knowingly supplied wrong information with the intention to defraud or mislead the agency. Eilertson v. Navy, 23 M.S.P.R. 152 (1984), indicates that intent is proven, as well, if the statement is made with reckless disregard for its truth. The same is true of a conscious purpose to avoid the truth. Riggin v. DHHS, 13 M.S.P.R. 50 (1982). It is not necessary to show that the employee gained or intended to gain financially, but the evidence taken as a whole must show the intent to gain some benefit or advantage, for the employee or another. Brown v. DLA, 65 M.S.P.R. 436 (1994), aff’d, 67 F.3d 319 (Fed. Cir. 1995) (Table), Wayne v. Navy, 55 M.S.P.R. 322 (1992) and McIntyre v. FEMA, 55 M.S.P.R. 578, 586 (1992). Any plausible explanation provided by the employee must be considered. See Naekel and McIntyre, cited above, and Bradley v. Veterans Administration 900 F.2d 233 (Fed. Cir. 1990). There is a presumed nexus between falsification and the efficiency of the service. Kissner v. OPM, 792 F.2d 133 (Fed. Cir. 1986).

D. Insubordination -
The Board has cited with approval the Black's Law Dictionary definition of "a refusal to obey some order which a superior officer is entitled to give and have obeyed." The agency must prove that the refusal to obey was intentional and willful disobedience. Gallagher v. Labor, 11 M.S.P.R. 612 (1982). A simple failure to follow instructions does not equate to insubordination. Patterson v. Air Force, 22 M.S.P.R. 6 (1984). However, it may provide grounds for discipline. See Simpkins v. USPS, 79 M.S.P.R. 603 (1998). If the employee meant to obey, but hadn’t quite gotten around to it, the charge may not be sustained. Phillips v. GSA, 878 F.2d 370 (Fed. Cir. 1989). The agency is not required to demonstrate explicitly an adverse impact on service efficiency from a particular act of insubordination. Bellamy v. Navy, 13 M.S.P.R. 526 (1982). An agency will want to distinguish between insubordination and disrespectful conduct, which may also be grounds for discipline. See Wilson v. Justice, 68 M.S.P.R. 303 (1995), in which it was the only charge sustained, and still supported removal. If obeying an order could cause "irreparable harm" refusal is not insubordination. See Fleckenstein v. Army, 63 M.S.P.R. 470 (1994), and Cooke v. USPS, 67 M.S.P.R. 401 (1995), aff’d, 73 F.3d 380 (Fed. Cir. 1995) (Table), which claims to clarify it. 

E.  Threats -
The central case is still the Federal Circuit's Metz v. Treasury, 780 F.2d 1001 (Fed. Cir. 1986). In Metz, the court specified that it was instructing the Board on how to analyze a threat case. It stated that the Board must give the words used the interpretation that would be given to them by a reasonable person, and that in weighing the evidence, the Board must consider: 1) The listener's reactions; 2) the listener's apprehension of harm; 3) the speaker's intent; 4) any conditional nature of the statements at issue; and 5) the attendant circumstances. Objective evidence must be given "heavy weight," although the Board was not directed to rely on it alone. 

The threat need not have been made to the threatened individual. See for instance, Battle v. DOT, 63 M.S.P.R. 403 (1994). Listener reaction is judged primarily by what persons who heard the statement actually did. Contrast Battle where listener reaction supported the charge, with Hutson v. Interior, 67 M.S.P.R. 432 (1995), where several specifications were not supported on this basis. A threat voiced to a mental health practitioner may not be actionable, even if the counselor found the threats serious and credible enough to raise a legal duty to protect. See Powell v. Justice, 73 M.S.P.R. 29 (1997) and Larry v. Justice, 76 M.S.P.R. 348 (1997). It is not clear whether the Board would have reached a different result in those cases if the counselors had called the police. Otherwise, however, the intent to carry out a threat is distinguishable from the intent to make one. See Greenough v. Army, 73 M.S.P.R. 648 (1997). 

Attendant circumstances are background facts that provide context that may help determine whether a particular statement was "threatening." Mr. Battle’s history of violent behavior was an aggravating attendant circumstance. On the other hand, the appellant in Castner v. USPS, 77 M.S.P.R. 393 (1998), had a history of outbursts which were "anti-social but non-violent," and the Board concluded his most recent statement was simply more of the same. 
 

F. Sexual harassment. - 
EEOC regulations and guidance and case law have historically distinguished two kinds. Quid pro quo (employment benefits conditioned on sexual compliance), which is relatively rare in the case law, and hostile environment, which unfortunately is not. (Be aware that these are not the distinctions made to determine agency liability for harassment--see Faragher and Ellerth, below.) In Sexton v. Pena, EEOC No. 01960453, September 10, 1996, the Commission found that harassment based on sexual orientation is not sexual harassment giving rise to a claim under Title VII.

The lead Federal sector case describing hostile environment charged under Title VII is King v. Hillen and MSPB, 21 F.3d 1572 (Fed. Cir. 1994). In Pope v. USPS, 114 F.3d 1144 (Fed. Cir. 1997), the court added a holding that proven sexual harassment creates a rebuttable presumption of nexus. While these cases are important, a handful of Supreme Court cases are the foundation for all analysis where sexual harassment is a charge under consideration. 

Meritor Savings Bank v. Vinson 477 U.S. 57 (1986) - Sexual harassment that creates such an abusive environment that working conditions are altered is a violation of Title VII, whether or not concrete benefits of employment were conditioned on acquiescence. The Court found that the complainant’s voluntary sexual participation did not overcome her claim that the sexual attention was unwelcome. 

Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993) - Sexual harassment need not have caused tangible harm, such as a mental breakdown, to violate Title VII, if it was sufficiently severe or pervasive to alter conditions of employment. The test is both objective and subjective: would a reasonable person find the environment hostile or abusive, and did the victim so find it? All circumstances must be considered, rather than looking at individual incidents in isolation. 

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998) - Unlawful sexual harassment may be directed to someone of the same sex as the perpetrator. However, Title VII does not prohibit all verbal or physical harassment in the workplace, but is directed only at discrimination because of sex. "Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." 

Faragher v. Boca Raton, 97 U.S. 282 (1998) and Burlington Industries v. Ellerth, 97 U.S. 569 (1998) - An employer is always liable for sexual harassment of one of its employees by one of its supervisors where there has been a tangible employment action. It may be held vicariously liable for other sexual harassment of an employee by one of its supervisors even if the employer was unaware of the harassment. The employer may raise a two-part defense: 1. That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2. That the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. (The Court here noted that quid pro quo and "hostile environment" are terms created by case law and not statute.) While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the presence and appropriateness of a policy will certainly come up in litigation. As the facts in Faragher illustrate, a policy that is not communicated to employees will not constitute much of a defense.
 

If the agency charges a harasser under its own regulation, which does not simply mimic Title VII, it need not prove all elements of the Title VII standard, but must prove that the conduct occurred and violated the regulation. See for instance, Alsedek v. Army, 58 M.S.P.R. 229 (1993). 

G. Theft. 
The lead case is King v. Nazelrod and MSPB, 43 F.3d 663, (Fed. Cir. 1994). The court affirmed the Board's holding that requires proof of intent to permanently deprive the owner of possession and use of property. However, see also Heath, cited in Section I, above. Heath and Mann v. DHHS, 78 M.S.P.R. 1 (1998) have useful discussions about what may be considered a "thing of value." Agencies sometimes charge unauthorized possession if they are not sure they can prove "intent to permanently deprive.".

H. Misuse of .........
Employees have always been subject to discipline for misuse of Government time, equipment, and materials. This category is distinguishable, because there is not a body of precedent that establishes consistent elements and burdens of proof. However, it is worth including because of the extreme and growing interest expressed by practitioners.

There are a few issues that commonly arise in these cases, regardless of whether they deal with misuse of a credit card, a computer, or something more intangible, such as an account number. For instance, the existence and specific language of any agency policy will be relevant as well as the clarity with which the policy was publicized and enforced. There are cases, such as Tallis v. Navy, 20 M.S.P.R. 108 (1984), that turn entirely on whether the employee had tacit or explicit permission from a superior for use that could otherwise have been chargeable as misconduct. 
 

Johnson v. Treasury, 15 M.S.P.R. 731 (1983) involves charged misuse of both a Government credit card, and a Government telephone. Baracker v. Interior, 70 M.S.P.R. 594 (1996) also involves misuse of a Government credit card for personal business. Phillips v. GSA, cited under Insubordination, above, is not a misuse case, but the order in question was to prove payment on her Government credit card. Neither the Board nor the court suggested the agency could not give such an order and expect to be obeyed.

Aiu v. Justice, 70 M.S.P.R. 509 (1996) is a good case with respect to both willful misuse of a Government vehicle and misuse of a sensitive (in this case, law enforcement) database. With respect to the former charge, there was significant discussion about the meaning of "willful" under 31 U.S.C.A. § 1349(b), which prescribes a mandatory 30-day suspension for willful misuse of a Government vehicle. The second charge was actually misuse of appellant’s "office as criminal investigator" by using the agency database to run an improper background check. 

There are a number of cases that speak more explicitly to misuse of a Government computer. One of the sustained charges in Avant v. Air Force, 71 M.S.P.R. 192 (1996), was "using Government resources to conduct private business affairs." In Bishopp v. Air Force, 75 M.S.P.R. 33 (1997), the two sustained instances related to appellant’s misuse of the agency electronic mail system to send bizarre messages to the commander. It is useful to contrast the penalty analysis in that case with Rush v. Air Force, 69 M.S.P.R. 416 (1996). The former appellant had severe psychiatric problems that contributed to her misconduct, and there was no showing it impeded agency business. The second was a flagrant, repeat misuser of the internet and email access she enjoyed. Similarly, the appellant in Cobb v. Air Force, 57 M.S.P.R. 47 (1993), was found to have used the computer and associated printer repeatedly to attend to personal business while neglecting her work, and had committed misconduct in the past. Removal was sustained on review for both Rush and Cobb. In Dolezal v. Army, 58 M.S.P.R. 64 (1993), the content of the charged improper emails was clearly a consideration. The senior executive in that case was carrying on an adulterous affair with a subordinate employee, and using the agency email system to further the affair and disparage the intervening supervisor.

Both charges in Morrison v. NASA, 65 M.S.P.R. 348 (1994) relate to computer misuse. He was charged with "misuse of Government resources," and with "exposing individuals in the work environment to sexually explicit material." As background, an examination of the computer he used found 148 files that generated sexually explicit images and 358 computer games. A coworker was actually exposed to one of the sexually explicit files.