Tuesday, March 31, 2015

New whistleblower protection for employees with security clearances

Last year, with little fanfare, Congress created a new whistleblower protection for employees with security clearances. President Obama signed the Intelligence Authorization Act of 2014 on July 7, 2014, and the whistleblower protection officially took effect in December. It is now codified at 50 U.S.C. § 3341(j).
Since 1988, the Supreme Court has barred lower courts from considering any claims challenging the Executive Branch’s determinations on security clearances. Department of the Navy v. Egan, 484 U.S. 518, 526-32 (1988). In 2012, Congress passed the Whistleblower Protection Enhancement Act (WPEA), but excluded any protection for employees of the “Intelligence Community” (IC).
President Obama then announced that he would fill the gap as best he could with is own order, Presidential Policy Directive 19 (PPD 19). He ordered the Director of National Intelligence (DNI) to establish a procedure for IC employees to make complaints about retaliation for whistleblowing – and receive relief if violations are found. The DNI did this by issuing Intelligence Community Director 120 (ICD 120).
As a creature of the Executive Branch, the procedure ends with a decision by a panel of agency directors. This procedure does not violate the Supreme Court’s holding in Egan because it is an exercise of the Executive Branch discretion protected by the Supreme Court.
Through the regular authorization process, Congress finally included legislation to make this new whistleblower protection a permanent law.
Reading the scope of protection in § 3341(j) makes clear that Congress wants to encourage IC employees to keep their concerns in-house. Edward Snowden’s actions have impressed our leaders with how they lose control when whistleblowers feel that no inside path will produce results and they must go outside, or even way outside, the chain of command to get problems addressed. Thus, officials have an incentive to make the internal process work so that whistleblowers are encouraged to raise their concerns internally.
The Intelligence Authorization Act covers “agency personnel.” An “agency” includes “an executive agency,” “a military department” and “an element of the intelligence community.” § 3341(a)(1). The new law does not cover employees of the FBI who have their own whistleblower procedure. 5 U.S.C. § 2303. Notice that this scope of coverage is broader than just the Intelligence Community (IC). It also covers federal employees (outside the FBI) who believe an action against their security clearance is an unlawful reprisal.
The precise wording Congress used covers, “Agency personnel with authority over personnel security clearance or access determinations[.]” This language suggests that the new procedure will protect not only federal employees, but also the employees of contractors who believe a security clearance decision is retaliatory.
The new provision states that these managers “shall not take or fail to take, or threaten to take or fail to take, any action with respect to any employee’s security clearance or access determination in retaliation . . ..” § 3341(j)(1). Finally, whistleblowers with security clearances will have some avenue to pursue when federal managers abuse their discretion to yank a security clearance as a reprisal. These national security whistleblowers will not have access to court, but they do have one route now to call on the managers to justify their actions.
Under § 3341(j)(1), whistleblowers are protected when they raise concerns about “a violation of any Federal law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety[.]” This scope of protection is similar to the Whistleblower Protection Act (WPA). From the WPA standards “gross” means more than de minimus. See the Committee Report on the WPEA, Senate Report 112-155 (April 19, 2012), p. 12.
Unlike the WPA, § 3341(j)(1) limits the protected channels for raising concerns. While the WPA protects “any” lawful disclosure, § 3341(j)(1) protects lawful disclosures to the DNI (“or an employee designated by the Director of National Intelligence for such purpose”), the agency head (or designees), the Inspector General, or lawful disclosures in conjunction with an appeal, grievance or complaint permitted by “any law, rule or regulation” or testifying or assisting others in the exercise of their rights to make a complaint.
In § 3341(j)(2), Congress says that the law does not authorize any action against an employee who makes a lawful disclosure to Congress. However, the phrase makes it less than clear that all lawful disclosures to Congress would be protected. Time will tell how the Administration applies this provision to employees who exercise their rights under the Lloyd-La Follette Act, 5 U.S.C. § 7211.
Incorporating clarifying provisions of the WPEA, § 3341(j)(3)(A) says that disclosures are protected when they (i) are “made to a person, including a supervisor, who participated in an activity that the employee reasonably believed to be [a violation],” (ii) reveal information that had been previously disclosed, (iii) are not made in writing, or (iv) are made while the employee is off duty. Also, protection cannot be denied because “of the amount of time which has passed since the occurrence of the events described in the disclosure.”
Surveys have shown that most whistleblowers make their initial disclosures to their immediate supervisors. The Intelligence Authorization Act anticipates this common situation with this provision in § 3341(j)(3)(B):
If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from paragraph (1) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.
I find it hard to say that any supervisor would not be “authorized” to receive a subordinate’s concerns. Still, it remains to be seen if the Administration will deny protection claiming the supervisor was not a person designated to receive such a disclosure. While the WPA has no time limit at all for the initial complaint to the Office of Special Counsel, § 3341(j)(4)(A) requires whistleblowers to make their initial complaints of reprisal within 90 days of each adverse action. Many agencies still have not announced their procedures to their employees, so I am suspecting that whistleblowers in these agencies will just make their reprisal complaints directly to the agency head. Perhaps then the agency head will write the agency policy and train the employees on how to use it.
If the agency finds a violation, they “shall take specific corrective action to return the employee or former employee, as nearly as practicable and reasonable, to the position such employee or former employee would have held had the violation not occurred.” § 3341(j)(4)(B). Unlike the WPA (which has no cap), § 3341(j)(4)(B) limits compensatory damages to $300,000.
If the agency decides that it did nothing wrong, the employee still has one more avenue of redress – an appeal to the DNI’s Inspector General. The appeal must be filed within 60 days of the agency’s final decision. § 3341(j)(5). Currently, the DNI has designated Daniel Meyer to hear these appeals. Whistleblowers may take heart in knowing that Daniel Meyer has a long record of advocacy for whistleblowers. He is a former attorney with Public Employees for Environmental Responsibility (PEER), and led the whistleblower protection program at the Department of Defense’s Inspector General’s office.
After the final decision from Daniel Meyer’s office, whistleblowers will then have no further right to appeal or go to court. § 3341(j)(6) and (7). The DNI must notify the House and Senate Intelligence Committees, and those Committee may choose to improve the law if they are not happy with the results.
The real test of this new process will be the experiences of the first courageous whistleblowers who use this system. If they can report that they received justice, then others with security clearances may feel encouraged to raise compliance concerns through the official channels. If a consciousness of compliance takes hold, then the American taxpayer could feel more confident that the black-budget agencies would be deterred from misusing our tax dollars – at least from the ways disapproved of by the Administration.

By Richard Renner

Wednesday, March 25, 2015

Petraeus Gets "Sweetheart Deal" While Others Go to Jail

It isn’t news that the rich and/or powerful get better treatment than the rest of us, but when it comes to Justice Department prosecution of “leakers,” there’s a really shocking disparity between General David Petraeus - who’s getting off with a slap of the wrist - and a long list of government employee whistleblowers who have been prosecuted as spies. 

Let’s review the facts: 

Petraeus gave his highly classified notebooks to Paula Broadwell, who was writing his biography. The notebooks - which he had illegally retained at home - contained the identities of covert agents, code word information, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, and quotes from high-level National Security Council meetings.  These were not just "top secret" documents; they were classified at the very highest levels possible.  

And what was Petraeus's motive? Alerting the public to governmental abuses? Exposing violations of law? No, there was no such public-spirited motive. Petraeus was having a secret extra-marital affair with Broadwell, and apparently wanted to impress his mistress. 

That’s not all. When questioned by the FBI as to whether he had ever retained classified information or ever disclosed classified information to someone not entitled to see it, Petraeus outright lied and denied any such conduct. Yet for these admitted crimes, the Justice Department is allowing Petraeus to plead guilty to a misdemeanor, pay a $40,000 fine, and serve no jail time.  He can maintain his job as chairman of the KKR Global Institute, with a seven-figure salary, and give speeches at $100,000 to $150,000 a pop. Indeed, he is still invited to consult with the National Security Council. 

Now let’s compare that with some other victims of the Justice Department’s relentless prosecution of alleged leakers under the Espionage Act: 

Former CIA officer Jeffrey Sterling is alleged to have given information about Operation Merlin to a NY Times reporter. Operation Merlin was a bungled CIA effort to get the Russians to provide false nuclear weapons information to Iran. The evidence that Sterling was the reporter’s source is circumstantial, but if he did do it, his motive was not getting into his illicit girlfriend’s bed, but exposing an issue the American public deserves to debate. Yet the Department of Justice prosecuted him under the Espionage Act, and he was found guilty on nine felony counts involving unauthorized disclosure of classified information. He now faces a potential prison sentence of 80 years, to say nothing of having been left penniless after paying for lawyers and being out of work. 

As an aside, Sterling, who is African-American, had previously filed a race discrimination lawsuit against the CIA. But the case was dismissed - not because there was no evidence of discrimination, but because the government successfully argued that it was protected by the state secrets privilege, alleging that the litigation would require disclosure of classified information. In other words, in order to prove his case, Sterling would have had to expose classified information, and there was no feasible way to make special arrangements in court to assure that this would not occur. 

Turn to the government’s more recent prosecution of Sterling for leaking information to the reporter. Somehow the government found a way to avoid the sticky problem of classified information by having its witnesses testify using from behind a screen with voice-altering devices and using pseudonyms. 

Former Defense Department official Lawrence Franklin passed classified documents regarding U.S. policy towards Iran to the American Israel Public Affairs Committee (AIPAC), who in turn provided the information to Israel. Franklin was hoping the US would implement a "harder line" against Iranian. He was indicted on five counts of violating the Espionage Act. He pled guilty and was sentenced to nearly 13 years in prison -- later reduced to ten months' house arrest.

Thomas Drake, a senior executive at the National Security Agency gave a reporter totally unclassified information about waste, fraud and abuse at NSA. Drake said, "I did what I did because I am rooted in the faith that my duty was to the American people." Specifically, he believed that NSA’s Trailblazer program not only violated Americans' privacy, in violation of the Fourth Amendment, but would also cost billions of dollars. The reporter received an award from the Society of Professional Journalists for her series exposing government wrongdoing. 

The FBI raided Drake's residence and confiscated his computers, documents and books. Finding that Drake had taken home some classified documents, the Justice Department prosecuted him for unlawful retention of classified information, obstruction of justice and making false statements to the FBI. They never alleged that Drake gave any classified information to the reporter. 

After four years of pretrial litigation and government threats that Drake could serve 35 years in jail, the government dropped all charges against Drake and agreed not to seek any jail time in return for Drake's agreement to plead guilty to one misdemeanor of misusing the agency's computer system. He was sentenced to one year of probation and community service.  At the sentencing hearing, the judge called the government's tactics "unconscionable," in that they charged Drake with a list of serious crimes that could have resulted in 35 years in prison, only to drop all of the major charges on the eve of trial. The judge also rejected the government's request for a large fine, noting that Drake had been financially devastated, losing his $154,600 job at the NSA and his pension. 

Shamai Leibowitz, an American citizen, was an FBI linguist whose job was translating conversations in Hebrew among Israeli diplomats in the US, conversations that the FBI had received through wiretaps. He passed classified transcripts about Iran to a blogger who subsequently published them. Leibowitz said that he revealed the information because the FBI was engaging in wrongdoings that led him to conclude it was an abuse of power. Leibowitz was sentenced to 20 months in prison.

Pfc. Chelsea Manning was charged with multiple violations of the Espionage Act after disclosing more than 700,000 classified State Department cables and government documents to WikiLeaks. She said that she did so “to help people, not hurt people.” Manning was charged with 22 offenses, including several related to Espionage. She was found guilty of 20 of the charges, six of which fell under the Espionage Act, and was sentenced to 35 years in prison and a dishonorable discharge.

Stephen Kim, a former a senior adviser for intelligence at the State Department's arms control compliance bureau, was charged with revealing classified information to a reporter that North Korea might test a nuclear bomb, and with making false statements to the FBI. Kim pled guilty to one felony count of disclosing classified national defense information to an unauthorized person, and was sentenced to a 13-month prison term. At the time he was negotiating the plea, the Justice Department stated that lying to the FBI was so serious that the Justice Department would not agree to allow Kim to plead to a misdemeanor. 

John Kiriakou, a former CIA officer, was charged with leaking information to a reporter about waterboarding. He was indicted with one count of violating the Intelligence Identities Protection Act, three counts of violating the Espionage Act, and one count of making false statements for allegedly lying to the CIA investigators. He was convicted of violation of the Intelligence Identities Protection Act and sentenced to 30 months in prison. 

James Hitselberger, a former Navy linguist, worked as an Arabic translator for the United States Fifth Fleet in Bahrain. He allegedly copied documents that revealed troop activities and gaps within U.S. intelligence about Bahrain. He was charged with violating the Espionage Act for providing classified documents to Stanford University. Later the charge was reduced to a single count of unauthorized retention and removal of classified documents.  He pled guilty and was sentenced to time served.

And finally, there's Edward Snowden, a former CIA employee who leaked a vast trove of top secret documents that disclosed the U.S. government's mass surveillance programs to the Guardian newspaper. His passport was revoked, and American officials have asked for his extradition from Russia, where he is now living. He is charged with two counts of espionage, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person. 

Snowden’s leaks were vastly more extensive than those of Petraeus and the other individuals described above, but Snowden claims that he was doing a public service by revealing the extent of NSA surveillance. 

Less well-publicized are the countless numbers of mid-level government employees and contractors who have lost their security clearances and their jobs after being accused of unintentionally taking home a classified document, or failing to confess their actions to agents or investigators. Government lawyers often threaten these employees with criminal prosecution in order to frighten them into resigning and thus giving up their right to an administrative appeal. 

It remains to be seen whether the double standard when it came to Petraeus will result in less harsh penalties for others who have engaged in similar compromise of classified information. Writing in Foreign Policy Magazine,  attorney Jesselyn Radack calls Petraeus’s plea a “sweetheart deal” and the government’s actions “two-tiered justice.” On March 6, 2015, Stephen Kim’s lawyer wrote a scathing letter  to the Justice Department prosecutors, asking that his client be released, and specifically citing their refusal to let his client plead to a misdemeanor because they claimed that lying to the FBI was such a serious offense. Kim’s lawyer also noted that his client had honorable motives, whereas Petraeus was merely trying to impress his mistress. 

Similarly, on March 19, 2015 Sterling’s lawyers filed a motion  to set aside the verdict against their client, in light of the misdemeanor plea agreement offered to Petraeus. 

As it now stands, Snowden is accused of being a traitor, whereas Petraeus maintains his reputation as an outstanding leader. See comments of John McCain in “The Hill.” 

-- this blog was prepared by Elizabeth L. Newman.  You can reach her at enewman@kcnlaw.com.

Monday, March 23, 2015

Time and Attendance at the Intersection of Discrimination and Civil Service Law

What happens if a federal employee is removed for lateness and poor attendance, and argues in her defense that her time and attendance are linked to her disability and she needs accommodation in the form of flexibility?  The Merit Systems Protection Board and the Equal Employment Opportunity Commission arrive at different answers to that question, and that disagreement was on stark display recently in  the MSPB’s and EEOC’s opinions in a rare decision of the Special Panel. Alvara v. Department of Homeland Security, 121 M.S.P.R. 613 (2014) (Special Panel) (Alvara III).

In the federal system, the MSPB has been given the authority to decide questions of personnel law, while the EEOC has the same authority to decide questions of discrimination law.  The Special Panel was created by Congress to determine whether the particular question at issue in a mixed case involves personnel or discrimination law.  The Special Panel consists of a Member of the MSPB, a Commissioner of the EEOC, and a member from another agency.

Time and attendance is one of the issues where  “civil service and discrimination law converge but the interpretations of the MSPB and the EEOC do not,” former MSPB Vice Chairman Ann Wagner observed in her  dissent in Alvara.  Alvara III, 121 M.S.P.R. at 646.  In light of Alvara, however, that assessment no longer appears to be correct.

The Board had earlier upheld the removal of an employee from a Program Manager position on a charge of medical inability to perform, because her job required her to be in the office some portion of the time, which her medical condition precluded. Fox v. Department of the Army, 120 M.S.P.R. 529 (2014).  Defining “essential functions” for disability analysis as equivalent to “core functions”, the Board in Fox accepted that, personal[]interact[ion] with team members... physically providing hard copies and updates of materials for the binders ... personal interaction with external customers... attend[ing] meetings with Congressional staffers and national meetings with representatives from other MSCs were essential functions”.  Fox v. Dep't of Army, No. DC-0752-11-0872-I-1, 2014 WL 309642 (M.S.P.B. Jan.29, 2014).   The Board made no attempt to distinguish job function from method in determining whether working in the office and travel are  essential functions.

In Alvara, the Board similarly made no distinction when it affirmed Mr. Alvara’s removal for physical inability to perform.  Alvara v. Department of Homeland Sec., 116 M.S.P.R. 627 (2011) (Alvara I).   Mr. Alvara was a Customs and Border Protection Officer suffering from sleep apnea.  As an accommodation, he had earlier asked to be excused from working the graveyard shift, a request the Department of Homeland Security had honored for nearly two years.  But then, in 2009, it proposed him for removal, citing his inability to work during the graveyard shift.  The Board, following another earlier decision, Slater v. Department of Homeland Security, 108 M.S.P.R. 419 (2008), agreed that ability to work the graveyard shift was an essential function of Alvara’s position.  Alvara I at 630-31.

In mixed cases, an employee who has filed a mixed case appeal to the Board may ask the EEOC to review the Board’s decision on the discrimination claim.  Alvara did so, presenting the Board’s analysis to the EEOC.  The Commission in Alvara rejected “considering attendance as an essential job function as opposed to a method by which essential functions are accomplished.”  The Commission noted that, “[t]here is a strong temptation among agencies to frame attendance, or other measures of the time at which functions must be performed, as essential functions.” * * *, Petitioner,, EEOC DOC 0320110053, 2014 WL 3571431, at *4 (July 10, 2014) (Alvara II) (emphasis added).  Describing this as, “represent[ing] a flawed understanding of the requirements and structure of the Rehabilitation Act”  (id.), the Commission explained that making attendance an essential function of a position would lead to the absurd result that “any employee with disability-related absences is an unqualified individual and, therefore, unable to claim the protections of the Rehabilitation Act.”  Id. at *5 (extensive citations omitted).  Instead, the Commission distinguished job functions, “Duties that a person must perform or the outcomes that must be achieved by the person on the job,” from methods, “by which a person accomplishes the essential functions of a job.”  Id.  Time and attendance, it explained, are methods, “albeit important ones,” and, as such, subject to “the law’s obligation to provide a reasonable accommodation that does not impose an undue hardship.”  Id.  “[T]he proper way to determine whether an individual is qualified for a job is to ask whether that person can perform the essential functions of the job when at work.”  Id. at *4 (emphasis original).

Following the EEOC’s decision disagreeing with the Board’s interpretation of the Rehabilitation Act, the Board had the choice of accepting the Commission’s decision, or referring the issue to the Special Panel for resolution.  The sole function of the Special Panel in these circumstances is to determine whether the disagreement involves a question of personnel law or discrimination law.  In Alvara III, the Special Panel sided with the EEOC.

Former Vice Chairman Wagner, dissenting from the Special Panel’s decision, objected that the EEOC’S newly announced position, which the Special Panel allowed to stand, “effectively eviscerated the authority of federal agencies . . . to establish time and attendance requirements as essential terms and conditions of employment.” Alvara III, 121 M.S.P.R. at 645-46. Wagner also objected that the EEOC was “categorically excluding time and attendance from being considered essential functions”, which ran afoul of “the Board’s longstanding precedent governing its adjudication of adverse actions based on physical inability to perform.”  Id. at 636-37.   Wagner cited what she termed “the EEOC’s rather artificial line between essential activities to achieve outcomes and other terms and conditions of employment, such as time and attendance, that may be essential to the successful and efficient performance of those activities.”  Id. at 638.

Contrary to Wagner’s objections, however, the Commission’s analysis simply shifts the issue of time and attendance from an essential function analysis to an undue hardship analysis.  Under the Rehabilitation Act, whether an employee is a “qualified person with a disability”  – requiring an assessment of the essential functions of a position  and so entitled to an accommodation  – is followed by an analysis of whether a particular proposed accommodation would pose an “undue hardship” to the agency.   The Commission’s analysis in Alvara II allows DHS to argue that allowing one guard to be exempted from the graveyard shift would adversely affect the functioning of the agency to be a part of the undue hardship analysis:

This does not mean, however, that attendance and timing are irrelevant or unimportant to a Rehabilitation Act claim. To the contrary, as we have recognized in our past guidance, attendance and timing can be crucial factors in determining whether a request for accommodation imposes an undue hardship on the finances or operations of an agency: 

 Alvara II at *5 (citing, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice 915.002, Question 22 (Oct. 17, 2002) (“For certain positions, the time during which an essential function is performed may be critical”).  The Commission thus held that,

the proper way to determine whether an individual is qualified for a job is to ask whether that person can perform the essential functions of the job when at work. Once that determination is made, the analysis then moves to whether an accommodation (if needed) that would enable the person to perform those functions when at work (such as leave or a modified schedule) imposes an undue hardship on the finances or operation of the agency.

Id.  (extensive citations omitted).  Thus, the Commission rejected the argument that Mr. Alvara’s attendance was an  “essential function” analysis and concluded that it more properly  fell under an “undue hardship” analysis, which the agency is required to prove as a defense to a reasonable accommodation claim.  Id. at *6.

Shifting the question of attendance to undue hardship, which the agency must prove, does not seem so extreme as to, in former Vice Chairman Wagner’s words, “eviscerate the authority of federal agencies . . . to establish time and attendance requirements as essential terms and conditions of employment.” Alvara III at 645-46.   Indeed, such a shift would seem to bring into better alignment the analyses required under both the Rehabilitation Act and civil service law that an Agency may take an adverse action only for such cause as will promote efficiency of the service.  5 U.S.C. 7513(a).  The needs of the agency in both analyses are accorded a significant role in determining whether and how a qualified federal worker with a disability will be accommodated.

This blog was written by Mary Kuntz.

Friday, March 6, 2015

The MSPB Rejects Agencies’ “Humpty Dumpty” Philosophy of Words

“When I use a word,” Humpty Dumpty said in a rather scornful tone, “It means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master–that’s all.” Lewis Carroll, Through the Looking Glass, Chapter Six.

In two recent cases, the Merit Systems Protection Board (MSPB) has taken on the role of Alice in deciding that Agencies are bound by the words they say to their employees—they may not make their words mean only what they want them to mean.

In Morrison v. Dep’t of Navy, Docket No. PH-0752-14-0669-I-1, 2015 MSPB 15 (Feb. 23, 2015), the Agency presented appellant with a notice of proposed removal and told him that if he was terminated, he would lose all of his benefits and retirement. The Agency also told the appellant that he instead could choose to retire, but he would have to do so immediately. Id. at ¶ 2. This information was false: “Retirement benefits earned over the course of one’s federal career are generally available upon separation from federal service, even when the separation is agency initiated.” Id. at ¶ 8 (citing 5 U.S.C. § 8312-15).

Ordinarily, an employee’s decision to retire is considered voluntary, and voluntary separations are not appealable. On Morrison’s appeal to the MSPB, however, he claimed that the Agency had essentially forced him to retire. Id. at ¶ 3. “A retirement is involuntary if it is obtained by agency misinformation or deception.” Morrison, 2015 MSPB 15 at ¶ 7 (citing Covington v. Dep’t of Health and Human Servs., 750 F.2d 937, 942 (Fed. Cir. 1984)). “The misleading information can be negligently or even innocently provided; if the employee materially relies on such misinformation to his detriment, based on an objective evaluation of the circumstances, his retirement is considered involuntary.” Id. (citation omitted). “The Board has stated that the principles set forth in Covington require an agency to provide information that is not only correct in nature but also adequate in scope to allow an employee to make an informed decision.” Id. (citing Baldwin v. Dep’t of Veterans Affairs, 111 M.S.P.R. 586, ¶ 16 (2009)). This includes a duty to correct any erroneous information upon which the Agency knows the employee is relying. Id.

The MSPB found that the Agency knew the employee was relying on the misinformation it had given to him. Specifically, the employee had told his managers on several occasions in the months leading up to his proposed removal that he was concerned about the effect of a termination on his retirement benefits. Morrison, 2015 MSPB 15 at ¶ 9. Whether the manager negligently or intentionally provided the employee with misinformation about losing his retirement benefits if he were terminated, the Board made it clear that Agencies are going to be held accountable for the words they impart to their employees.

In Thome v. Dep’t of Homeland Security, Docket No. DA-0752-12-0339-I-1, 2015 MSPB 27 (Feb. 27, 2015), the MSPB rejected the Agency’s use of ambivalent language to remove the appellant without first providing her with the right to notice of the charges against her and an opportunity to respond. The appellant had performed light-duty work during her pregnancy and then took FMLA leave following the birth of her child. She returned to work without restrictions in October 2011, but with the proviso from her OB/GYN that she be allowed to continue the light-duty work due to a concern that she might be exposed to toxins in the workplace which could be transmitted to her child through breast milk. Id. at ¶¶ 3-4. On February 7, 2012, the Port Director issued to the appellant an option letter, directing her to return to full duty work within 5 days or resign. Id. at ¶ 5. “The option letter noted that the appellant had not fully performed her CBPO duties since November 12, 2010, and stated that the agency needed her to return to full duty.” Id. at ¶ 5.

On February 22, 2012, the Port Director issued another letter to the appellant, proposing her removal on a charge of “Unavailability for Full Performance of Customs and Border Protection Officer Duties.” Thome, 2015 MSPB 27 at ¶ 7. The proposal letter described the removal action as a “non-disciplinary adverse action.” The Port Director stated in the proposal letter that, “You have been and are unavailable to fully perform the duties for which you are employed,” and he described her decision to breastfeed her infant child as a “personal choice,” and that she could avail herself of the Agency’s lactation support program. Id.

On April 2, 2012, the deciding official notified the appellant of her decision to remove her, effective the very next day. Sustaining the charge in the notice proposing appellant’s removal, the deciding official stated that the appellant was medically able to fully perform her duties, but had chosen to make herself unavailable. Id. at ¶ 9.

At the MSPB hearing, the deciding official’s equivocation became patently clear to the administrative judge. He testified that Agency policy distinguishes between “disciplinary” actions (adverse actions based on misconduct charges) and “nondisciplinary” actions. Id. at ¶ 18. He indicated that “when an employee has not committed misconduct but is simply unavailable for work the agency may bypass these [notice and response] procedures and impose a nondisciplinary action under the direct authority of 5 C.F.R. Part 752. Thome, 2015 MSPB 27 at ¶ 18.

Examining the language used in the proposal notice, the judge found that the Port Director did not “indicate that the action was based specifically on her unwillingness to return to full duty, as opposed to her unavailability per se.” Id. at ¶ 19. And, in the decision letter, the judge stated that the “deciding official again indicated that the action was being taken for nondisciplinary reasons.” Id. at ¶¶ 19-20. However, the judge paid close attention to the words the proposing official and deciding official used at the hearing. The judge said that “the deciding official repeatedly testified at the hearing that the appellant was removed because she ‘refused’ to return to full duty…The proposing official testified to the same effect. The testimonies of both the proposing and deciding officials demonstrate that, contrary to the proposal notice, the appellant’s removal was in fact a disciplinary action based on a charge of misconduct, namely, her alleged refusal to return to full duty.” Id. at ¶ 20.

Throughout the hearing, the deciding official continued to weave a web of equivocation, when she testified that, “I don’t think that she [the appellant] engaged in misconduct. I think she simply refused to perform her job.” However, when the administrative judge asked the deciding official why she did not consider the appellant’s refusal to constitute misconduct, the deciding official offered the following cryptic explanation: “I would consider misconduct–I mean, generally the way we look at misconduct cases are where we say she had been ordered, you know, to return to full-duty and she had disobeyed an order, then we have a specific charge of misconduct.” Thome, 2015 MSPB 27 at ¶ 21. Rejecting this balderdash, the administrative judge stated, “[w]e find, however, that the February 7, 2012 option letter, which offered the appellant the Hobson’s choice of returning to full duty or ending her employment with the agency, was tantamount to an order to return to full duty.” Id.

The administrative judge concluded as follows: “whether by mistake or for the sake of administrative convenience, the agency misrepresented the basis for its action….The action must therefore be reversed because the agency failed to provide the appellant her due process right to advance notice of the basis for the proposed action and an opportunity to respond.” Id. at ¶ 22 (citation omitted).

These two MSPB decisions should send a warning signal to Agencies: be careful about the words you use with your employees, particularly concerning adverse employment actions. Agencies cannot use words to mean what they choose them to mean. Rather, the MSPB is master of the words.

This post was written by Valerie Chastain.