By William Wiley

Here at FELTG, we are civil service systems people. We take the position that there’s little wrong with the system that cannot be fixed by the system. In other words, we may occasionally disagree with a decision issued by an oversight agency, but for the most part, we see the system as working.

And then I run into two decisions in the same week that give me pause and make me wonder if the system really is working.

First, a decision from the Federal Circuit Court of Appeals, the reviewing court that oversees the final orders issued by MSPB. It is rare that a decision issued by this court causes concern as most of its decisions affirm the Board, some years at a rate of 95% or so. That rate is to be expected, as it is built into the law that the court is to be deferential to the Board on matters of fact and most matters of law.

Unfortunately, that deference did not happen in a recent decision. The facts of the case are not in dispute. The appellant, a housekeeper, had a substance abuse problem. He was absent from work for six months. Most of that time, he was participating in a rehab program in a correctional facility. However, toward the end of that period, because he got in a fight with another program participant, he was excused from the rehab program and remained in jail for the last 38 days of the six-month period.

His employer, DVA, removed him in large part because of the six-month absence. Unfortunately, the judge concluded that the period of absence while the appellant was participating in the rehab program was an approved absence. That left only the last 38 days of unapproved absence. Although the judge felt this reduction warranted mitigation of the removal to a 40-day suspension, the Board set aside the judge’s decision and upheld the removal. Purifoy v. DVA, 2015-3196 (Fed. Cir. 2016).

Then things got screwy on appeal to the Federal Circuit.

First, the court agreed with the judge that the agency could not charge the appellant with AWOL for the time the appellant was in the rehab program. It reasoned that when the employee notified “one of his supervisors” (point of interest: federal employees have a single immediate supervisor when it comes to requesting leave) that he would be absent due to rehab, the supervisor’s response that the appellant should “take care of [himself]” was an approval of leave for the period of rehab. It reached this conclusion even though the official he spoke with told him, “You also need to see your supervisor and fill out the proper paperwork.”

Apparently, the Federal Circuit doesn’t know that a) employees have a single supervisor for leave purposes, not several; b) employees request leave, they don’t just notify of an absence; and c) “paperwork” is often required to determine the type of leave being requested, the justification for the absence, and the expected duration of absence. It is not some bureaucratic follow-up of no importance to the determination about whether the employee’s leave request will be approved.

Secondly, the court noted that the MSPB judge had found that the entire six-month absence was not supported by “substantial” evidence. Every practitioner in this business knows that the proper evidentiary standard is a “preponderance” of the evidence. Apparently, the court does not.

Third, the court agreed with the judge that a significant mitigating factor was the fact that the sustained period of 38 days of AWOL was for less time than the originally charged six-month period. Apparently, it is engaged in the fallacy that if a big charge is reduced to a smaller charge, the big penalty of removal should be reduced to a smaller penalty. That makes no sense. Charge a criminal with killing ten people, and prove that he actually killed only one still warrants a murder conviction. The reasonableness of the penalty should be based on the sustained charges without reference to the charges that were brought, but not sustained.

Fourth, the court is concerned that the appellant was not put “on clear notice that his absence would result in severe discipline.” Well, what difference does that make? We are concerned generally about clarity of notice so that an employee knows exactly what misconduct to avoid. Here, the dude was in jail. He could not have avoided the AWOL even if he was given exceedingly clear repeated notice of possible severe discipline BECAUSE HE WAS INCARCERATED! If given clear notice, would he have not become incarcerated? Perhaps staged a prison break so he would not be AWOL? Ridiculous.

Fifth, the court faulted the Board for its failure to discuss the adequacy of a penalty less than removal for the sustained 38 days of AWOL. In other words, why not suspend the employee instead of firing him? Well, if we suspend him we lose his services for some period of time without any guarantee that he will not be AWOL again. And the harm he is causing the agency by his AWOL is that it loses the benefit of his services. Therefore, if it were to suspend the employee, it would be doubling up on the harm caused by his misconduct. It’s either remove or take no adverse action at all. Given the harm to the coworkers caused by their having to do this guy’s work while he was AWOL 38 days, removal is reasonable. And keep in mind, the agency’s penalty selection has to only be reasonable, not perfect.

Finally, the court goes out of its way to note that the appellant represented himself in his appeal and conducted an “extensive pro se cross-examination of the government’s witnesses.” It reasons that due to his “credibility and demeanor as both a witness and an advocate at hearing,” the Board should give “special deference” to its judge’s conclusion that the appellant has rehabilitation potential.

Look. We teach trial advocacy here at FELTG (next offered in DC October 23-27, 2017) and we know how challenging it can be to conduct a cross-examination. At the same time, we know that conducting a cross-examination is in no way related to the ability of someone to avoid going AWOL in the future or to otherwise perform housekeeping duties.

It is the deciding official’s responsibility to assess the Douglas Factor for rehabilitation potential. At the time the decision was made to fire this individual, he had not yet acted his own advocate, even if that were to be relevant. This point is huge: Should the agency’s penalty assessment when made at the time to remove receive deference when all of the charges are sustained as was the case here (Payne v. USPS, 72 MSPR 646 (1996))? Or, should the Board reconsider the penalty selection factors at the time of appeal based not only on the Douglas Factors before the deciding official, but also based on factors that occurred post-removal through the hearing?

I feel sorry for this appellant. Addiction is a terrible burden to bear and a tough diagnosis to beat. At the same time, I feel sorry for his coworkers who had to pick up the slack when this guy did not report to work for an extended period of time. I feel sorry for the vet patients who might not have received the degree of housekeeping services that were warranted because whoever was doing this appellant’s job was too busy to do all that really should have been done. And I feel sorry for the agency that is trying to hold this individual accountable for his unapproved absence, and who correctly considered the penalty factors when it made the decision to remove the employee.

Our civil service system is being attacked by those running for political office and by those already on Capitol Hill for making it too difficult to remove federal employees. Interventionist second-guessing decisions like this one from the Federal Circuit feed into that attack, and perhaps actually do indicate that it is the system that is the problem.

I have another case that makes this same point, but it will need to wait for a separate article. In fact, here at FELTG, if indeed the system is the problem, we even have an earth-shaking alternative approach to removing individuals from government for our new President to consider. That recommendation will have to wait for an even later article. [email protected]

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