In a recent MSPB victory case, Ballard-Collins v. Army, SF-0752-13-0617-I-1 (2016) (NP), an agency attempted to remove an IT specialist for discourteous behavior. Their chances seemed favorable because the employee had previously been suspended for 7 days (for similar discourtesy), then 14 days for failing to follow orders.
In cases like this, the agency rarely loses at the Merit Systems Protection Board (MSPB) because of a failure to prove specifications. If they do lose, it’s usually not to a lack of charge proof, but to a procedural screw-up: due process violation, poorly drafted charge, or weak Douglas analysis*.
But this case was an exception because most of the specifications failed completely and resulted in a MSPB victory. Of the original three charges – each with up to seven specifications – the Board sustained only one specification and mitigated the proposed removal to a five-day suspension.
The evidence was a classic he-said/she-said. For each specification considered, the appellant simply denied the charge, and a customer or co-worker supported the charge by sworn testimony or affidavit. In all but one specification, the Board decided to believe the appellant, not the agency witnesses.
There are a few basic takeaways worthy to note:
- The agency should not have relied on written statements as proof in the face of the appellant’s contrary live testimony. Almost every time, the Board will believe in-person sworn testimony over written affidavits.
- SPECIFICITY! The agency’s charges and specifications need to be short and specific. Generalized charges hardly ever withstand Board review.
- The agency should have only charged what it could prove. If it can prove rude behavior, it should only charge rude behavior, not “discourtesy” by submitting evidence of “rudeness.”
Of course, the MSPB can make a mistake in the weighing of the evidence, and no one can be sure how a judge will evaluate your agency’s attempt to prove the charges against you. However, the agency failed to take the strategic steps it should have taken to put its case in the best possible light. Understanding and using some of the basic principles of Board practice would have given the agency a better chance of walking away the winner.
This article was taken from “Preponderance of Evidence Revisited” by William Wiley of the Federal Employment Law Training Group. In the article, Wiley described the MSPB as a nit-picky old bitty when it comes to the wording of a specification.
*The Merit Systems Protection Board in its landmark decision, Douglas vs. Veterans Administration, 5 MSPR 280, established criteria that supervisors must consider in determining an appropriate penalty to impose for an act of employee misconduct. These twelve factors are commonly referred to as “Douglas Factors”.