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.

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