Delancy v USPS, 88 MSPR 129, March 23, 2001.  The agency failed to prove charge of falsification based on submitting false electronic reports since the appellant did not prepare the reports nor did she review the reports and she was not otherwise aware of the information contained in the reports.  Therefore, the falsification charge was not sustained because the agency was unable to establish the required element of intent for the falsification charge.
 

Kirkland-Zuck v HUD, 90 MSPR 12, March 30, 2001.  The Board concluded that the AJ erred in mitigating the agency’s removal action to a 90-day suspension for an employee who engaged in rude, boisterous, disruptive, or disrespectful behavior toward his supervisor and co-workers. See also Zayer v VA, 90 MSPR 51, September 12, 2001.  Agency removal action was sustained.
 

Salazar v Energy, 88 MSPR 161, March 30, 2001.  Where an agency charges an employee with violation of agency sexual harassment policy, it is not normally required to prove violation of TitleVII standards.  However, where the agency's policy explicitly references Title VII and its standards, then any charge must meet the standards of that law.  Here, the Board found that a hostile work environment was not created by virtue of a single phone call by an agency employee to a subcontractor in which he told her she was beautiful and that her husband was a lucky man.  The employee's 30-day suspension was reversed.
 

O’Keefe v USPS, 88 MSPR 475, April 26, 2001.   The employee was charged with improper conduct/fraudulent use of personal identifiers.  Specifically, the employee filed a $100,000 mortgage application using the personal information of another postal employee.  Stating that: "when as here, all of the charges have been sustained, the Board defers to the agency's discretion .... the Board's function is not to displace management's responsibility but to ensure that managerial judgment has been properly exercised ....It is not the Board's role to decide what penalty it would impose, but, rather, whether the penalty selected by the agency exceeds the maximum reasonable penalty ....,"  the Board reversed its AJ's mitigation of the employee's removal to a 60-day suspension, holding that removal was a reasonable penalty.
 

Sands v Labor, 88 MSPR 281, May 1, 2001.    This case is before the Board upon the appellant’s timely request for review of the April 11, 2000 The arbitratior affirmed the agency’s December 11, 1998 action removing her from her position.  While arbitration decisions are entitled to a greater degree of deference  than initial decisions by the Board's judges, it was error for the arbitrator to apply the substantial evidence standard of proof to the agency's charges.  More significantly, the Board found that the agency's charges of (1) engaging in threatening conduct and (2) making statements that resulted in anxiety and disruption in the workplace were each supported by a preponderance of the evidence.  It noted that the two charges were separate and distinct in that each required different elements of proof.  Specifically, the second charge does not require a showing of intent to make threats.  The arbitration award was sustained.
 

Mingledough v VA, 88 MSPR 452, May 18, 2001.   Notwithstanding the agency's reliance on prior discipline which was not cited in the proposal or decision notices, as well as evidence of the employee's psychological impairment,  the employee misconduct was so serious that his removal was sustained. In this case, the employee repeatedly refused to obey the orders of agency police officers, and then escalated that noncompliance by resisting arrest and engaging in a physical altercation with the officers.  The Board noted that there was no evidence that the employee's psychological impairment could be remedied or controlled, i.e., there was little or no potential for rehabilitation.   The Board reversed the AJ's decision to mitigate the removal to a 95-day suspension.  Agency removal action was sustained.
 

L’Bert v Veterans Affairs, 88 MSPR 513, June 15, 2001. An agency is not authorized to order an employee to take a psychological fitness for duty examination simply because the employee’s physical examination failed to indicate that the alleged disability existed.
 

Cross v Army, 89 MSPR 62, July 11, 2001.  A supervisor was charged with "conduct unbecoming a Federal employee" and "falsification - deliberate misrepresentation of a material fact."  The supervisor changed a rating official's rating of employees without that official's knowledge or permission and made false statements during the oral reply to a proposed suspension.  The Board found the agency proved each of the charges, and upheld the employee's removal, reversing its administrative judge, who had mitigated the proposed removal to a demotion to the next lower grade nonsupervisory position.  In doing so, the Board noted that the agency was not required to prove intent with regard to the first charge.
 
 

Mahan v Treasury, 89 MSPR 140,  July 20, 2001.  During a domestic dispute, an IRS criminal investigator fired shots in the general direction of her husband.  The agency charged her with conduct unbecoming and removed her.  The initial decision upheld the agency charges but mitigated the removal to demotion to the highest non-supervisory, non-law enforcement position for which the employee qualifies.  The full Board rejected the employee's claim of self-defense and found the penalty of removal within the bounds of reasonableness.
 

Stuhlmacher v USPS, 89 MSPR 272, August 17, 2001.  While not breaking any new ground, this case provides good guidance on how the current Board will assess and mitigate penalties where it determines that the agency selected penalty exceeds the bounds of reasonableness.  Here the Board mitigated the removal of a Postmaster for criminal conversion (changing the price tag on merchandise prior to purchase) to a demotion to the next lower-graded non-managerial position with the least reduction in grade and pay. 
 

Redschlag v Army, 89 MSPR 589, September 6, 2001.  Penalty of removal was a reasonable penalty for misconduct which included defiance of authority, slapping a coworker, disruption of the workplace, discourtesy and failing to complete assignments.  The Board concluded that despite her good performance ratings, the evidence supported a finding that she had great difficulty getting along with fellow employees and that there was little potential for rehabilitation.
 

USPS v. Gregory, Supreme Court Appeal No. 00-758, November 13, 2001.  Reversing a decision of the Federal Circuit, the Supreme Court holds that the Merit Systems Protection Board may rely on an employee's prior disciplinary action in determining the appropriateness of a current penalty even when the prior discipline is undergoing review in another forum.   Prior to this decision,  in Blank v Army, Fed.Cir. No. 003255, 4/19/01, the Federal Circuit had already excluded from the application of its holding, reliance on prior discipline being challenged under the EEO discrimination complaint process.
 

Ludlum v Justice, Fed. Cir. No. 01-3093, January 28, 2002.   The employee, an FBI special agent, was removed on the charge of lack of candor during an administrative inquiry.  The Board upheld the charge but mitigated the removal to a 120 day suspension.  On appeal, the employee claimed that the agency failed to prove that he had the requisite intent to defraud or mislead the agency.. The Court rejected this claim, finding that while such intent is necessary to prove a charge of falsification, no such showing is necessary to prove the charge of lack of candor.  Instead, it stated that while such a charge involves an element of deception, it does not require an "intent to deceive."
 

Biniak v SSA, PH0752990098-I-2, January 31, 2002.  The appellant’s removal based on charges that he was using government equipment to operate his personal business was sustained despite the appellant’s contention that the agency denied him due process when the deciding official relied on two incidents of wrongdoing and elements of past record that were not included in the notice of proposed adverse action.  The Board held that although it has held that an agency may not rely on misconduct that was not included in its proposed notice, it has not considered such error to be a denial of due process.