V

COMMON REASONS
FOR TAKING ADVERSE ACTIONS

Certain charges carry particular burdens of proof established in case law.A few examples follow.These references are by no means exhaustive, nor is this an attempt to articulate all of the categories of possible charges for which there are specific burdens of proof.

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PHYSICAL INABILITY TO PERFORM THE DUTIES OF THE POSITION

See Owens v. Air Force, 8 MSPR 580 (1981).An agency cannot rely solely on the existence of a disabling condition.It must show a link between the medical condition and the 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 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).See also Street v. Army, 23 MSPR 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 MSPR 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).

In practice...You must consult EEOC guidance and current related case law to determine your approach in cases that turn on disability determinations.In particular, note the Commission’s insistence on the necessity of a case-by-case assessment and pay close attention to the treatment of medical documentation.

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ACTIONS BASED ON APPROVED LEAVE
. See Rabago v. Dept. of Army, 25 MSPR 530.Since the agency had granted

approved leave for all of the absences used as a basis for the employee’s removal for excessive absence, the removal was improper.An action may not normally be taken on the basis of approved leave, but that leave record may be raised as a factor relevant to the agency’s selection of penalty.See also Webb v. USPS, 10 MSPR 536 (1982).Cook v. Army, 18 MSPR 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,

(see 5 CFR 630.401), the agency may require the submission of administratively acceptable evidence for an absence of any duration.See

5 CFR 630.403, and Rison v. Navy, 23 MSPR 118 (1984).See also Patterson v. Air Force, 74 MSPR 648 (1997), where the agency removed the employee for being AWOL and failing to comply with requests for complete medical documentation to support her “medical leave”.The Board ruled she had tried to comply in good faith with the agency’s request and the medical evidence established she was incapacitated for duty.The Board ordered the employee reinstated with back pay.

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 MSPR 4 (1995).However, distinguish Westmoreland v. DVA,

83 MSPR 625 (1999).In that case, the Board applied the long-standing charging rules 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.

In practice...AWOL charges can be overturned for reasons beyond the agency’s knowledge or control.For instance, the employee may produce previously unsubmitted medical evidence, or the Department of Labor may approve a workers’ compensation claim.For this reason, it is wise to charge the employee separately with failure to follow procedures, if it is a matter of record that the employee knew what the proper procedures were, but failed to comply with them.

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FALSIFICATION

...To establish a charge of falsification, the agency must prove by a preponderance of evidence that the employee intentionally provided incorrect information.The charge of a false statement will be considered relatively narrowly.The major element to be proved is intent.See Pittman v. Dept.

of Interior, 60 MSPR 365, 374 (1994).In Filson v. Dept. of Transportation, 7 MSPR 125 (1981), the Board stated that intent is a state of mind and will generally be established through circumstantial evidence.Naekel v. Transportation, 782 F.2d 975 (Fed. Cir. 1986) said 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 MSPR 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 MSPR 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 MSPR 436 (1994), aff’d, 67 F.3d 319 (Fed. Cir. 1995) (Table);

Wayne v. Navy, 55 MSPR 322 (1992) and McIntyre v. FEMA, 55 MSPR 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).

See also Lachance v. Erickson, et al, 118 US 753 (1998), where the Court held that an agency may take adverse action against an employee because the employee made false statements in response to an underlyingcharge of misconduct.

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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 MSPR 612 (1982).A simple failure to follow instructions does not equate to insubordination.

Patterson v. Air Force, 22 MSPR 6 (1984).However, it may provide grounds for discipline.See Simpkins v. USPS, 79 MSPR 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 MSPR 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 MSPR 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. Dept. of Army, 63 MSPR 470 (1994), andCooke v. USPS, 67 MSPR 401 (1995), which claims to clarify it....

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THREAT

...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.The Federal Circuit stated that the Board must give the words the interpretation that would be afforded them by a reasonable person.Further, in weighing the evidence, the Board must consider:

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1. The listeners reactions;

2. the listener's apprehension of harm

3. the speaker's intent

4. any conditional nature of the statements at issue

5. the attendant circumstances.

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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 MSPR 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 MSPR 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 MSPR 29 (1997) and Larry v. Justice, 76 MSPR 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 MSPR 648 (1997).

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Although the Federal Circuit in Metz cautioned against relying on rumors as threats, threats that concerned on supervisor and were uttered to another individual, who then repeated what he heard to the supervisor, were held to support dismissal in Murphy v. DHHS, 34 MSPR 534 (1987).

Attendant circumstances are background facts that provide aggravating or mitigating context.Mr. Battle’s history of violent behavior was an aggravating attendant circumstance.On the other hand, the appellant in Castner v. USPS, 77 MSPR 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.

In practice...Distinguish behavior that is bullying, intimidating, weird, or simply upsetting from threats.If your agency has a policy that deals with threats, look closely at the language to see if it is relevant to the conduct you can prove.

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SEXUAL HARASSMENT

...EEOC regulations and guidance and case law have historically distinguished two kinds of sexual harassment:

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Quid pro quo: where employment benefits are conditioned on sexual compliance.This type of sexual harassment is relatively rare in the case law.
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Hostile environment: whether a particular environment meets this test is determined both objectively and subjectively.First, the conduct must be severe and pervasive enough that a reasonable person would view the environment created as hostile, offensive or abusive.Second, the individual must actually have perceived the environment as such.See Meritor Savings Bank v. Vinson, 477 US 57 (1986) and Harris v. Forklift Systems, Inc., 510 US 17 (1993) discussed below.Be aware that these are not the distinctions made to determine agency liability for harassment--see Faragher and Ellerth, below.

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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

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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.However, 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 US 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.("An environment that a reasonable person would find hostile or abusive.")

Harris v. Forklift Systems, Inc. 510 US 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.(Harassment will be defined on a case-by-case basis; created "reasonable woman" standard.)@

Oncale v. Sundowner Offshore Services, Inc. 523 US 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.

The employer 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 correcpromptly 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.Whileproof 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.

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In practice...While Faragher and Ellerth do not teach charging principles, they do provide support for the necessity of strong employment policies and practices to prevent harassment and act against harassers.One component of such policy, of course, is a credible system for investigating complaints of misconduct and taking appropriate action when complaints are substantiated.In some cases, the provable misconduct will not meet all the criteria to be characterized as sexual harassment under the pertinent standards, and should be noticed with a different charge, such as disrespectful conduct, conduct unbecoming a supervisor, etc.

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 MSPR 229 (1993).

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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 under "What is an Element" in the "Adverse Action Charges" handout.Heathand Mann v. DHHS, 78 MSPR 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 the employee did not intend to return the item(s) taken.

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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.
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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 MSPR 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.

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In practice…If there is not a consensus about proper use in your agency, you will find these cases difficult.If there appears to be a problem, it will be helpful if management defines the problem and proposed solution in terms it is willing to apply to all employees.The resulting policy must then be communicated to supervisors and employees.Ad hoc discipline that occurs outside such a framework may not be corrective, and may be harder to defend.

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Johnson v. Treasury, 15 MSPR 731 (1983) involves charged misuse of both a government credit card, and a government telephone.Baracker v. Interior, 70 MSPR 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 give such an order and expect to be obeyed.
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Aiu v. Justice, 70 MSPR 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 USCA § 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 MSPR 192 (1996), was “using Government resources to conduct private business affairs.”In Bishopp v. Air Force, 75 MSPR 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 MSPR 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 misuse of the Internet and email access she enjoyed.Similarly, the appellant in Cobb v. Air Force, 57 MSPR 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 MSPR 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.
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Both charges in Morrison v. NASA, 65 MSPR 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.