By Deborah Hopkins, January 17, 2018
One of the more interesting – and precarious – challenges that attorneys, HR practitioners, and supervisors in our business come across in misconduct cases is a word that you probably remember from way back in your Criminal Law class, if you went to law school: intent. Proving intent can be difficult, and while in the criminal world lesser-included offenses automatically apply (for example, if you can’t prove Murder 1, Murder 2 is a lesser-included offense that rides along with the Murder 1 charge), in the business of federal employment law, failing to prove intent might just cause you to lose your entire case – even if you have incontrovertible video evidence and 100 witnesses who can swear that the employee engaged in misconduct.
In our business, labeled charges (for example, falsification; theft) come with an element of intent, and the intent has to be proven by a preponderance of the evidence. So, how does one prove intent? Well, unless we have an appellant who admits they intended to tell a lie or to permanently deprive someone of something, intent is proven by considering the totality of the circumstances. Naekel v. Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); Boo v. DHS, 2014 MSPB 86.
When it comes to intent charges, we have a few common categories that are worth exploring. Today we’ll cover deceit/falsification and insubordination. In the next newsletter we’ll tackle threat and willful misconduct.
In order to prove Falsification, the agency must prove that the information given by employee is:
– Misleading, or
2. Given with the intent to deceive, and
3. For private material gain
All of these elements are required, so just because an agency can show that an appellant has provided incorrect information, this proof in itself does not control the question of intent for purposes of adjudicating a falsification charge. Reid v. Navy, 118 MSPR 396 (2012) (intent may be negated if there is evidence the appellant does not believe he has done anything wrong). Because we’re talking about circumstantial evidence, intent may also be inferred when the misrepresentation is made with a reckless disregard for the truth, or with conscious purpose to prevent the agency from learning the truth. Crump v. VA, 114 MSPR 224, ¶ 6 (2010).
One of the common ways agencies lose the intent argument is when an employee makes a good-faith explanation for the behavior that seems deceitful, and the agency still decides to charge the employee with falsification. A reasonable good-faith belief in the truth of a statement precludes a finding that an employee acted with deceptive intent. See, e.g., Leatherbury v. Army, 524 F.3d 1293 (Fed. Cir. 2008) (appellant who requested mileage reimbursement to which he was not entitled had a reasonable good faith belief that he could seek reimbursement, therefore he could not have been reckless with regard to the truth because of that reasonable good faith belief).
The absence of a credible explanation for the incorrect information can constitute circumstantial evidence of intent to deceive. Crump, supra (the totality of the circumstances and lack of plausible explanation showed the appellant falsified his educational background, a medical record, and information related to a military leave request with the intent to deceive or mislead).
If your intent to deceive evidence is shaky, consider charging lack of candor, which is a more flexible charge that need not require proof of intent to deceive. See, e.g., Ludlum v. DoJ, 278 F.3d 1280 (Fed. Cir. 2002). And always remember, you can pump up the penalty by putting intent in the Douglas analysis; if you lose it down there, your case isn’t necessarily dead.
Insubordination is “The willful and intentional refusal to obey an authorized order of a superior that the superior is entitled to have obeyed.” Phillips v. GSA, 878 F.2d 370 (Fed. Cir. 1989), which is a distinct charge from failure to follow a policy, Brown v. Air Force, 95 FMSR 5182 (1995).
Here are examples of a few cases where agencies were able to prove the intent element in insubordination charges:
• Refusal to comply with a supervisor’s order to go home, Ziegler v. Treasury, DC-0752-11-0645-I-1 (2013)(NP).
• Disobedience of an order to be vaccinated against anthrax, Mazares, Jr. v. Navy, 302 F.3d 1382 (Fed. Cir. 2002).
• Refusal to answer a supervisor’s questions in connection with a work assignment, Shaw v. Air Force, 98 FMSR 5373 (1998).
• Refusal to submit to drug testing, Watson v. Transportation, 91 FMSR 5447 (1991).
And here are a few that agencies lost:
• A brief delay in providing information sought in connection with an investigation, Milner v. Justice, 97 FMSR 5455 (1997).
• Refusal to comply with an order that would have placed the employee in imminent danger of serious injury, Washington v. VA, 91 FMSR 5486 (1991).
• A sincere but unsuccessful attempt to comply with an order, Forgett v. Army, 90 FMSR 5329 (1990).
• Failure to comply with an order or direction that is not sufficiently clear, Drummer v. GSA, 84 FMSR 5706 (1984).
If you’re having trouble on the intent evidence in these cases where you want to charge insubordination, consider instead charging something like failure to follow orders, which does not require willful refusal to obey an order but just requires proof the employee did not do what he was told to do. See Hamilton v. USPS, 71 MSPR 547 (1996).
The bottom line in labeled charges that contain an intent element: be sure you have a preponderance of the evidence on intent, because if you don’t, you lose the whole thing. Hopkins@FELTG.com