MSPB, THIS DOES NOT SOUND FAIR
An agency removed a supervisory employee based on the charge of conduct unbecoming a supervisor, supported by two specifications. But MSPB upheld his removal based on specifications that were never listed in the proposed removal letter. That is a great win for HR Specialists who no longer need do the hard work of formally notifying the employee why it is removing him. All they need write in the future is a description of one or two incidents and then throw in the phrase, “and lots of other times you screwed up.” Here are the details of how MSPB is ignoring employee due process rights just to make HR’s job easier.
The agency’s first specification was written as follows:
Beginning in February 2015 through the present, [the appellant’s supervisor] had to speak to [him] numerous times regarding [his] conduct towards [his] female subordinate employees. It was reported to [the supervisor] that [the appellant was] making comments to females that were unwanted and inappropriate in the workplace. Even though [the appellant] may have believed that [he was] paying a compliment by telling [his] subordinate female employees that they were “sexy” or “beautiful,” in fact, [he] made them feel uncomfortable. [The appellant’s] conduct is unbecoming a supervisor.
The MSPB Administrative Judge (AJ) found evidence the employee made the “beautiful” comment, but that the agency could not prove the “sexy” utterance. Consequently, she held that the employee’s conduct was not serious enough to merit removal. Rather, she ordered him demoted out of supervision and suspended for 14 days. He would have been reinstated with about 7 years back pay due to the Trump Administration’s decision not to process MSPB appeals for four years.
But, when the AJ’s decision went to the full Board, it reversed her ruling and upheld the removal. Here is where the unfairness enters the case. The full Board, in a decision labelled as precedential, held that the AJ erred when she failed to consider all the other many instances of similar behavior by the employee even though the agency chose not to list them as specifications. It wrote,
In actuality, the appellant’s misconduct, as charged by the agency, spanned several months and went well beyond two instances of calling E.M. and C.A. “beautiful,” which the agency merely used as an example of the appellant’s misconduct. The materials the agency relied upon when proposing removal, which were provided to the appellant and which he addressed in his response to the proposal notice, provide further details regarding his misconduct.
In other words, according to MSPB it is sufficient if an agency merely attaches evidence of other specifications without going to the trouble of listing them as formal specifications. I am very bothered by that decision alone, but just as worrisome is where that concept ends. For example, I once represented an employee fired for making technical mistakes on an audit of a major Nebraska insurance company. As I recall, the agency listed over 60 specifications of mistakes, giving us a chance to rebut each of them. Under this new ruling, it seems that all that agency needs do the next time it wants to fire an employee is list one or two specific mistakes and then attach the audit file with the comment that the employee had made mistakes “numerous times.” That would have left us to scour all 10,000 pages to identify the mistakes it was relying on and then rebut them. IMPOSSIBLE!
It seems to us only fair that if an agency wants to take away an employee’s job, to which s/he has a constitutionally protected property right, it is not too much to ask for it to identify with specificity the precise incident it is relying on to terminate. Even if attachments were permissible notice, in this case the agency chose to only have the women in some of the attached described incidents testify before MSPB. Does that mean the other incidents attached were not so important to justify removal?
As this case was working itself through the MSPB drafting process, the U.S Federal Circuit Court of Appeals slapped down another MSPB decision upholding removal of an employee because the Board decided to gloss over a different kind of the employee due process right. It wrote,
When “a procedural due process violation has occurred…, such a violation is not subject to the harmless error test.” Id. “The concept of procedural fairness is the ultimate focus of the Stone inquiry . . . .” Jacob Johnson v. Dep’t. of the Air Force, No. 2021-1579 (Fed Cir. 2022)
Ideally, something will be done here to similarly challenge the Board’s decision and drive home the idea that the right to due process cannot be overlooked. MSPB is taking away this due process protection just to make the HR Specialists job easier by permitting him to simply attach things to the removal letter rather than putting the employee on specific notice of what s/he must rebut. Ironically, if President Trump were an employee subject to adverse action this MSPB would have allowed the agency to fire him merely by specifying his two most recent lies and then attaching five years of Washington Post stories reporting on him, leaving him to figure out where the lies were in each.
For more details about this case see William T. Thomas, IV, Appellant, v. Department of the Army, Agency, 2022 MSPB 35 Docket No. SF-0752-15-0877-I-1 (October 20, 2022).