MSPB TWEAKS ADVERSE ACTION DUE PROCESS CONCEPT
The agency indefinitely suspended an employee for losing his security clearance, and on appeal MSPB used the case to tweak it concept of due process protections in an adverse action. That makes it a case lots of LR/ER practitioners should know about.
According to the Board, the proposing official explained to the employee that he had already considered the possibility of carrying him on administrative leave or reassigning him to another position not requiring access to classified information, but had concluded that neither alternative was “viable.” Consequently, when he replied the employee did not try to convince the proposing official to impose a lesser penalty. After the proposed indefinite suspension was imposed, the employee appealed to the Board and raised among other things that he had been denied due process because the proposing official had a closed mind on the penalty before the employee replied. He specifically alleged that the deciding official did not have the authority to choose an alternative penalty because, according to the proposal notice, reassignment would have been “inconsistent” with official agency policy. Although some might argue that the Board has already addressed this question, it decided to issue a precedent-level decision entitled, Palafox v. Dept. of Navy, Hawaii, 2016 MSPB 33 (December, 2016). It began by writing that due process requires, at a minimum, that an employee being deprived of his property interest be given “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Moreover, “[e]ven where the facts are clear, the appropriateness or necessity of the [penalty] may not be,” and in such cases the employee must receive a “meaningful opportunity to invoke the discretion of the decision maker.”
To our surprise, however, the Board ignored the fact that due to management actions the employee thought it was futile to raise the alternative penalty argument in his reply. Instead, it wrote, “While the appellant did not succeed in persuading the deciding official to carry him on administrative leave, the record reflects that he was notified of the allegations underlying the suspension of his access to classified information, and received an opportunity to present rebuttal evidence before the final penalty determination was made.”
Frankly, the Board’s view does not seem to square with the realities of the work place or even employee-supervisory relationships. If a supervisory official tells an employee not to raise a particular argument in his defense or merely conveys that a particular argument will not do him any good, is the employee supposed to disobey that order and/or risk upsetting the one management official that holds the employee’s future in his hands? Given that MSPB has accepted a “futility” defense in other cases and it left us wondering why it is not appropriate here.