Herrera-Martinez v. Social Security Administration, 84 M.S.P.R. 426 (1999)
That misconduct was committed by following improper supervisory policies, when not done as a result of intimidation, does not provide a basis for mitigation; nor does condonation require mitigation, especially where the misconduct is clearly illegal. Thus, removal was reasonable for an SSA claims representative’s fraud and falsification on behalf of claimants, and her own acceptance of gifts.
 

Daigle v. Department of Veterans Affairs, 84 M.S.P.R. 625 (1999)
EEO counseling sessions are "a semi-confidential means through which employees complain about the conduct of other agency personnel" under 29 C.F.R. § 1614.105. Further, complainants are likely to be emotionally distraught when they are reporting perceived discrimination. Thus, as to a disrespectful conduct charge, the Board concluded that these sessions are one of the contexts in which it is reasonable to afford them more leeway with regard to conduct than might otherwise be afforded in other employment situations.
 

Stabile v. Department of Defense, 85 M.S.P.R. 253 (2000)
Upon reconsideration of its precedent, the Board held that when it orders the agency to demote a manager to a lower-graded non-managerial position, without specifying that it should be done with the least reduction in pay, the agency must set the employee’s pay at the step of the lower-graded position that results in the least reduction in pay consistent with its pay-setting regulations on demotions for cause. If it has none, it must place him in the step of the lower-graded position that results in the least reduction in pay. To the extent that Kopec v. Army, 63 M.S.P.R. 576, and Slaughter v. Agriculture, 56 M.S.P.R. 349, suggest to the contrary, the Board overruled them. In reviewing its established law on the subject, the Board also noted that absent an agreement between the parties, such a demotion order obligates the agency to place the appellant in a position at his former facility, and that if the placement is at a lower grade than he is ultimately entitled to, the appellant is to be notified of higher-graded vacancies the agency fills.
 

Edwards & Rodriguez v. Department of the Army, 87 M.S.P.R. 27 (2000)
That his supervisor retains confidence in the appellant regardless of his misconduct is not dispositive because that judgment is the agency’s to make, not the supervisor’s. The Board also ruled here that the fact that the appellant returned to duty after his misconduct does not diminish the seriousness of his on-duty misconduct (alcohol use).
 

Clark v. United States Postal Service, 85 M.S.P.R. 162 (2000)
Failure to provide an employee notice and an opportunity to respond to an appealable action that deprives him of his property right in his employment abridges his constitutional right to minimum due process, and such deprivation is not subject to a harmful error test. Thus, as here, where the appellant explained to the official trying to serve notice of a proposed removal on him that he was then too mentally and emotionally upset to focus on or understand the letter, so that he could not sign for it, and the agency made no subsequent efforts to assure its delivery, he was denied due process when the decision to remove him was made without providing him a chance to know and respond to the charges.
 

Johnson, et al. v. Department of Health and Human Services, 86 M.S.P.R. 501 (2000)
Because the Indian Child Protection and Family Violence Prevention Act, Pub. L. No. 101-630 (25 U.S.C. § 3207), provides that the agency shall ensure that no one in a covered position has been found guilty of or entered a guilty or nolo plea to a covered crime, the agency must remove employees from covered positions if they have been so convicted or entered such a plea to a covered crime, irrespective of their good work performance and retention of supervisors’ trust.
 

Omites v. United States Postal Service, 87 M.S.P.R. 223 (2000)
An agency’s "zero tolerance" policy alone is insufficient reason not to consider other Douglas factors in setting a penalty for proscribed conduct. Thus, where the deciding official failed to give appropriate consideration to the relevant Douglas factors, the Board will not defer to his penalty selection.
 

Jones v. Department of Housing & Urban Development, 87 M.S.P.R. 269 (2000)
Agencies have an obligation to file a disability retirement application on behalf of an employee under the circumstances set out in 5 CFR 844.202. Further, in French v. Office of Personnel Management, 37 M.S.P.R. 496, in disability retirement appeals, the Board set forth procedures that must be followed as to apparently incompetent appellants. Here, in an adverse action appeal, the Board found that the administrative judge should inquire into whether the agency had any obligation to the appellant to file on her behalf. It then directed that if the agency is found to have that duty, procedures like those in French should be applied. Specifically, the agency and OPM should join in a "cooperative undertaking" so that the appellant’s rights are not impaired on account of her possible incapacity. However, the decision did not determine whether the appointment of counsel should generally be required in adverse action appeals or reverse precedent holding French procedures inapplicable to adverse action appeals.
 

Cross v. Department of the Army, 89 M.S.P.R. 62 (2001)
An agency need not affix any label to its charges, but if it does so, it must prove the elements that make up its legal definition. It may, instead, use a broad label as long as the reasons for the proposed action are described in sufficient detail. Thus, that it used the words "falsified" and "falsely" in the narrative of a "conduct unbecoming" charge does not require it to prove the specific intent element for falsification under the requirements of Naekel v. Department of Transportation, 782 F.2d 975. However, in such a "conduct unbecoming" charge, intent remains relevant to assessing the reasonableness of the penalty. The Board also found that a charge of "false statements - deliberate misrepresentation of material fact" covers not only untrue statements, but also those that deliberately conveyed a misleading impression, and it defined "material" in that context.
 

Modrowski v. Department of Veterans Affairs, 252 F.3d 1344 (Fed. Cir. 2001)
DUE PROCESS
It was arbitrary and capricious to charge an employee with "refusal to cooperate" where the agency, among other things, unfairly denied the employee the opportunity to consult with his attorney.
 

Gribcheck v. United States Postal Service, 87 M.S.P.R. 473 (2001)
The Board sustained the appellant’s removal for failure to submit to a psychiatric fitness for duty examination. (Postal Service) Although the general rule is that an employee must obey an agency order and then protest its propriety later, the Board has held that this rule does not apply to a refusal to submit to an unauthorized psychiatric fitness examination. Here, the Board considered the rule in a case in which the Postal Service was the acting agency, because it is unclear whether the regulations applicable to fitness exams, at 5 CFR Part 339, apply to the USPS. It noted that 39 U.S.C. § 1005(a)(2) gives a USPS preference eligible "only the rights granted to veterans by the Veterans’ Preference Act." Since the right to refuse an examination is not enumerated in the Veterans’ Preference Act, the Board concluded that the USPS is not subject to the requirements of 5 CFR Part 339. The agency’s Employee and Labor Relations Manual controls instead.
 

Wiley v. Department of Justice, 89 M.S.P.R. 542 (2001)
This decision examined the law concerning searches of an employee’s private property conducted on agency premises. Searches by Government employers of the private property of their employees are subject to the restraints of the Fourth Amendment, and a Federal employee’s Fourth Amendment rights are implicated if his employer has "infringed an expectation of privacy that society is prepared to consider reasonable." A search is considered reasonable if the property owner consented to it; consent may be inferred from nonverbal actions. The test for whether there are "reasonable grounds" for a search of a Federal employee’s property, as set out in O’Connor v. Ortega, 480 U.S. 709, was applied here to the case of an employee of a correctional institution when the agency sought to search for a loaded weapon in his vehicle in the agency’s parking lot, did so, and turned up nothing. The record showed that after being notified of the search, the appellant got into his vehicle and drove off, returned later, and only then permitted the search. The Board held that the search was reasonable and based on a "reasonable suspicion." Moreover, the agency also had reasonable grounds for suspecting that a search was necessary for non-investigative work-related purposes because it had a legitimate interest in ensuring that no unauthorized weapons were being stored in vehicles parked on the lot.
 

Manlogon v. Environmental Protection Agency, 87 M.S.P.R. 653 (2001)
CONSTRUCTIVE ACTIONS
Because the law of constructive demotions under Russell v. Department of the Navy, 6 M.S.P.R. 698, had become clouded, the Board used this case to clarify it. Although Hogan v. Department of the Navy, 81 M.S.P.R. 252, has been interpreted to hold that a constructive demotion can only be found where the higher graded position had been classified "subsequent to" the appellant’s reassignment, the Board here found no reason for requiring a particular sequence of events. Thus, it overruled the "subsequent to" requirement in Hogan. However, it reaffirmed the rule that an argument that an appellant’s position "should have been" upgraded does not suffice as a claim of constructive demotion. Finally, it held that the fact that the appellant’s allegedly reclassified job was abolished without ever having been filled does not defeat the claim during the time period the job was classified at the higher level. The decision also discusses certain rules concerning position classification and when it becomes effective for purposes of this kind of case.
 

Gregory  [USPS v. Gregory, 122 S.Ct. 431 (2001)  [US SUPREME COURT] Nov-13-01
The Supreme Court held that the Board may independently review prior disciplinary actions, including those that are still the subject of pending grievance procedures, when determining the reasonableness of a penalty imposed by the employing agency. In so holding, the Court vacated the Federal Circuit’s decision in Gregory v. U.S. Postal Service, 212 F.3d 1296 (Fed. Cir. 2000), and remanded for further proceedings.
------------The Court held that independent review does not violate the statutory scheme of the Civil Service Reform Act of 1978. Where a termination is based on a series of disciplinary actions, some of which are minor, the Board’s authority to review the termination must also include the authority to review each of the prior disciplinary actions to establish the penalty’s reasonableness. The Court stated that if the Board’s independent review procedure is adequate, then the review that an employee receives is fair.
 

Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452 (2001)
This case discusses an exception to the general rule that evidence that an employee’s medical condition played a part in the charged conduct is a significant mitigating factor. Specifically, the Board found that is not so in the absence of evidence that the impairment can be remedied or controlled, i.e., when the potential for rehabilitation is poor. --------------------  In addition, the case held that an agency’s failure to state in its notice of proposed removal that it will rely on an appellant’s past disciplinary record is sufficient to prevent consideration of that disciplinary record by the deciding official or by the Board, and that this is an issue of due process at the agency level, so that the fact that the appellant addressed his past discipline before the Board does not remedy the agency’s failure. 
 

Blank v. Department of the Army, 247 F.3d 1225 (Fed. Cir. 2001) DUE PROCESS
An employee’s due process guarantee of notice and an opportunity to respond was not violated where a deciding official obtained information regarding pending charges through investigatory communications that did no more than confirm or clarify the record. The rule in Gregory v. U.S. Postal Service, 212 F.3d 1296 (Fed. Cir. 2000), vacated and remanded, U.S. Postal Service v. Gregory, No. 00-758 (U.S. Nov. 13, 2001) that an employing agency and the Board may not consider prior disciplinary actions taken against an employee that are the subject of ongoing proceedings challenging their merits does not apply to prior disciplinary actions pending before the Equal Employment Opportunity Commission on complaints of discrimination.