**[ADVERSE ACTION CHARGES]{.smallcaps}**

***Selected Cases and Practical Tips***

**I.** **General Principles**

**Neither Congress nor OPM has attempted to define appropriate \"cause\"
for adverse action.** As long as discipline for the charge will promote
the efficiency of the service, action may be brought. *Penaloza v.
DHHS*, 4 M.S.P.R. 322 (1980). **Adverse action charges are not to be
technically construed.** See *Johnston v. GPO*, 5 M.S.P.R. 354 (1981),
*Spearman v. USPS*, 44 M.S.P.R. 135, 139 (1990), and *Acree v.
Treasury*, 80 M.S.P.R. 73 (1998).

**While charges need not follow any particular form, the employee must
receive notice of the reasons for the agency=s action that is adequate
to allow an informed reply.** See for instance, *Mason v. Navy,* 70
M.S.P.R. 584 (1996), *Pope v. USPS*, 114 F.3d 1144 (Fed. Cir. 1997), and
Lachance v. MSPB 147 F.3d 1367 (Fed. Cir. 1998), referred to hereafter
as *Crouse III.* See also *Stone v. FDIC*, 179 F. 3d 1368 (Fed. Cir.
1999).

**All elements of the charge actually brought must be proved.** *See,
**What Is an Element?*** below.

**II. What is a Charge?**

**A. Independent Acts Are Separate Charges.** See *Chauvin v. Navy*, 38
F.3d 563 (Fed. Cir. 1994), and *Fairley v. Postal Service*, 63 M.S.P.R.
545 (1994).

**B. One Act May Be the Basis for More than One Charge.** The key issue
is whether the charges are based on genuinely different reasons with
different burdens of proof. Cumulative charges (usually seeking a higher
penalty) are not justified on the basis that one act of misconduct may
be characterized several ways, or was repeated, predictably, several
times. This is sometimes called Apiling on.@ *See Southers v. VA*, 813
F.2d 1223 (Fed. Cir. 1987); *Special Counsel v. Mangan*, 33 M.S.P.R. 392
(1987); *Ibarra v. Air Force*, 11 M.S.P.R. 110 (1982). *But see*,
*e.g.*, *Jackson v. Army,* 52 M.S.P.R. 1 (1991) *Miles v. Army*, 55
M.S.P.R. 633, 636 (1992), and *Christiansen v. Postal Service*, 51
M.S.P.R. 681 (1991), *aff=d.* 979 F.2d 216 (Fed. Cir. 1992), which did
allow two charges because they constituted separate offenses with
different burdens of proof.

**C**. **An Agency May Give Alternative Characterizations of a Charge.**
The agency may find the evidence proves one of two things, either of
which warrants action. When it gives alternative charges, the third
party should consider whether either has been proven. *See Crouse III*,
cited in Section I above. While one characterization may be more serious
than the other, that is relevant to penalty assessment and not to
substantiation of the charge.

**III. What Is an Element?**

**The elements of a charged offense must be proven in order to prove the
charge.** See *Messersmith v. GSA*, 2 M.S.P.R. 150 (1981), and *King v.
Nazelrod and MSPB*, 43 F.3d 663 (Fed. Cir. 1994). Further, the Board
will not sustain an action on the basis of a charge that could have been
brought but was not.

**A. Some Elements Are Inherent in the Charge Brought.** The *Nazelrod*
holding dealt with an element, intent, that was inherent in the charge
brought. Criminal offenses like theft, perjury, or embezzlement always
have such inherent elements. If the agency cites a particular statute,
the language of the statute defines the burdens. See *Heath v. DOT*, 64
M.S.P.R. 638 (1994). If not, common law definitions may be applied, as
in *Nazelrod*. Both of these cases involved a charge of Atheft,@ but in
*Heath* the agency did not have to prove intent to permanently deprive
because that was not an element of the Title 18 section it cited. A
number of non-criminal charges have inherent elements too, derived from
case law. The most common are discussed briefly in Section V.

**B. Sometimes the Elements Derive from the Way the Charge Is Written.**
The way you write the charge determines what you have to prove. The key
case is *Burroughs v. Army*, 918 F.2d 170 (Fed. Cir. 1990), which holds
that **where a charge consists of more than one element, each element
must be proven by a preponderance of the evidence to sustain the
charge.** Read *Burroughs* and count the number of specific things the
agency had to prove to defend a single charge! Also see *Diaz v. Army*,
56 M.S.P.R. 415 (1993) for a compendium of cases applying *Burroughs*,
and for useful discussion of the (often difficult) distinction between
charges and specifications (which are defined below). *Weaver v. USDA*,
55 M.S.P.R. 569, 576-77 (1992), holds that the *Burroughs* rule applies
to third parties, and not to an agency. The deciding official may
sustain only part of a proposed charge, and the sustained portion is
then what the agency acts on and must defend.

**IV. What Is a Specification?** The factual information you supply
*about* your charge, the specifications, are distinguishable from the
elements *of* the charge. If any of the specifications supporting a
charge are proved, the charge can be sustained. *See, for instance,
Royster v. Justice*, 58 M.S.P.R. 495 (1993). Only so much of the
specification as necessary to prove the essence of the charge need be
proven. *Green v. Navy*, 61 M.S.P.R. 626 *aff=d*, 36 F.3d 1116 (Fed.
Cir. 1994) (Table) and *Otero v. USPS*, 73 M.S.P.R. 198 (1997).

**However, when a charge is very general and unspecific, a third party
must look to the specification(s) to determine the true elements of the
charge**. *See Huisman v. Air Force*, 35 M.S.P.R. 378 (1987) and *Crouse
III*, cited in Section I, above.

**V**. **Common Reasons for Action**

**Some charges have particular burdens of proof established in case
law.** A few examples follow. These references are by no means
exhaustive, nor are these all the categories for which specific burdens
have been articulated.

**A. Physical inability to do the job** **-** *Owens v. Air Force*, 8
M.S.P.R. 580 (1981) - An agency cannot rely solely on the existence of a
disabling condition. It must show a link between the medical condition
and observed deficiencies in work performance or behavior, or a high
probability of hazard to the employee or others because of the kind of
work the employee does. The Board has recently made it clear that the
agency must explicitly state whether it is presenting evidence of
observed deficiencies or of the high probability of injury to the
employee or others. *Schrodt v. USPS*, 79 MSPR 609 (1998). *Street v.
Army*, 23 M.S.P.R. 335 (1984) - even if the employee was disabled at the
time of the action, it does not promote the efficiency of the service to
remove him where at the time of his hearing he has recovered. Nor does
it promote the efficiency of the service where the appellant can be
accommodated - *Cason v. NASA*, 37 M.S.P.R. 261 (1988). Removal does not
promote the efficiency of the service if the employee was promoted from
a job he could do to one he could not. In that case, demotion back to
the prior position is appropriate. *Vidal v. USPS*, 143 F.3d 1475 (Fed.
Cir.1998).

**B. Approved leave -** An action may not normally be taken on the basis
of approved leave - *Webb v. USPS*, 10 M.S.P.R. 536 (1982) - but that
leave record may be raised as a factor relevant to the agency=s
selection of penalty. *Cook v. Army*, 18 M.S.P.R. 610 (1984), sets out
the criteria that must be met for use of approved leave as a basis for
removal. While employees have a right to use sick leave as needed, 5
C.F.R. 630.401, the agency can require the submission of
administratively acceptable evidence for an absence of any duration. 5
C.F.R. 630.403. *Rison v. Navy*, 23 M.S.P.R. 118 (1984).

An agency may charge an employee with failure to follow leave requesting
procedures as a separate charge from AWOL, so long as the employee was
on notice of the procedures he was expected to follow. *Wilkinson v. Air
Force*, 68 M.S.P.R. 4 (1995). However, distinguish *Westmoreland v.
DVA*, 83 M.S.P.R. 625 1999. In that case, the Board applied the
long-standing charging rules explained in II B, above, and found the two
charges must be merged because the agency gave as its *sole reason* for
the AWOL charge the employee=s failure to follow leave requesting
procedures. In supporting the two charges, an agency must distinguish
the lack of approval that supports the one charge from the failure to
follow specific rules that supports the other.

**C. Falsification** - The major element to be proved is intent. *Filson
v. Transportation*, 7 M.S.P.R. 125 (1981) - intent is a state of mind
and will generally be established through circumstantial evidence.
*Naekel v. Transportation*, 782 F.2d 975 (Fed. Cir. 1986) - Proof of
falsification requires a showing that the employee knowingly supplied
wrong information with the intention to defraud or mislead the agency.
*Eilertson v. Navy*, 23 M.S.P.R. 152 (1984), indicates that intent is
proven, as well, if the statement is made with reckless disregard for
its truth. The same is true of a conscious purpose to avoid the truth.
*Riggin v. DHHS*, 13 M.S.P.R. 50 (1982). It is not necessary to show
that the employee gained or intended to gain financially, but the
evidence taken as a whole must show the intent to gain some benefit or
advantage, for the employee or another. *Brown v.* DLA, 65 M.S.P.R. 436
(1994), *aff=d,* 67 F.3d 319 (Fed. Cir. 1995) (Table), *Wayne v. Navy*,
55 M.S.P.R. 322 (1992) and *McIntyre v. FEMA*, 55 M.S.P.R. 578, 586
(1992). Any plausible explanation provided by the employee must be
considered. See *Naekel* and *McIntyre*, cited above, and *Bradley v.
Veterans Administration* 900 F.2d 233 (Fed. Cir. 1990). There is a
presumed nexus between falsification and the efficiency of the service.
*Kissner v. OPM*, 792 F.2d 133 (Fed. Cir. 1986).

**D. Insubordination** - The Board has cited with approval the *Black\'s
Law Dictionary* definition of \"a refusal to obey some order which a
superior officer is entitled to give and have obeyed.\" The agency must
prove that the refusal to obey was intentional and willful disobedience.
*Gallagher v. Labor*, 11 M.S.P.R. 612 (1982). A simple **failure to
follow instructions** does not equate to insubordination. *Patterson v.
Air Force*, 22 M.S.P.R. 6 (1984). However, it may provide grounds for
discipline. See *Simpkins v. USPS*, 79 M.S.P.R. 603 (1998). If the
employee meant to obey, but hadn=t quite gotten around to it, the charge
may not be sustained. *Phillips v. GSA*, 878 F.2d 370 (Fed. Cir. 1989).
The agency is not required to demonstrate explicitly an adverse impact
on service efficiency from a particular act of insubordination. *Bellamy
v. Navy*, 13 M.S.P.R. 526 (1982). An agency will want to distinguish
between insubordination and **disrespectful conduct**, which may also be
grounds for discipline. See *Wilson v. Justice*, 68 M.S.P.R. 303 (1995),
in which it was the only charge sustained, and still supported removal.
If obeying an order could cause Airreparable harm@ refusal is not
insubordination. See *Fleckenstein v. Army*, 63 M.S.P.R. 470 (1994)*,*
and *Cooke v. USPS*, 67 M.S.P.R. 401 (1995), *aff=d*, 73 F.3d 380 (Fed.
Cir. 1995) (Table), which claims to clarify it.

**E. Threats -** The central case is still the Federal Circuit\'s *Metz
v. Treasury*, 780 F.2d 1001 (Fed. Cir. 1986). In *Metz*, the court
specified that it was instructing the Board on how to analyze a threat
case. It stated that the Board must give the words used the
interpretation that would be given to them by a reasonable person, and
that in weighing the evidence, the Board must consider: 1) The
listener\'s reactions; 2) the listener\'s apprehension of harm; 3) the
speaker\'s intent; 4) any conditional nature of the statements at issue;
and 5) the attendant circumstances. Objective evidence must be given
\"heavy weight,\" although the Board was not directed to rely on it
alone.

The threat need not have been made to the threatened individual. See for
instance, *Battle v. DOT*, 63 M.S.P.R. 403 (1994). Listener reaction is
judged primarily by what persons who heard the statement actually did.
Contrast *Battle* where listener reaction supported the charge, with
*Hutson v. Interior*, 67 M.S.P.R. 432 (1995), where several
specifications were not supported on this basis. A threat voiced to a
mental health practitioner may not be actionable, even if the counselor
found the threats serious and credible enough to raise a legal duty to
protect. See *Powell v. Justice*, 73 M.S.P.R. 29 (1997) and *Larry v.
Justice*, 76 M.S.P.R. 348 (1997). It is not clear whether the Board
would have reached a different result in those cases if the counselors
had called the police. Otherwise, however, the intent to *carry out* a
threat is distinguishable from the intent to *make* one. See *Greenough
v. Army*, 73 M.S.P.R. 648 (1997).

Attendant circumstances are background facts that provide context that
may help determine whether a particular statement was Athreatening.@ Mr.
*Battle=s* history of violent behavior was an aggravating attendant
circumstance. On the other hand, the appellant in *Castner v. USPS*, 77
M.S.P.R. 393 (1998), had a history of outbursts which were Aanti-social
but non-violent,@ and the Board concluded his most recent statement was
simply more of the same.

**F. Sexual harassment**. - EEOC regulations and guidance and case law
have historically distinguished two kinds. *Quid pro quo* (employment
benefits conditioned on sexual compliance), which is relatively rare in
the case law, and hostile environment, which unfortunately is not. (Be
aware that these are not the distinctions made to determine agency
liability for harassment\--see *Faragher* and *Ellerth,* below.) In
*Sexton v. Pena*, EEOC No. 01960453, September 10, 1996, the Commission
found that harassment based on sexual orientation is not sexual
harassment giving rise to a claim under Title VII.

The lead Federal sector case describing hostile environment charged
under Title VII is *King v. Hillen and MSPB*, 21 F.3d 1572 (Fed. Cir.
1994). In *Pope v. USPS*, 114 F.3d 1144 (Fed. Cir. 1997), the court
added a holding that proven sexual harassment creates a rebuttable
presumption of nexus. While these cases are important, a handful of
Supreme Court cases are the foundation for all analysis where sexual
harassment is a charge under consideration.

*Meritor Savings Bank v. Vinson* 477 U.S. 57 (1986) - Sexual harassment
that creates such an abusive environment that working conditions are
altered is a violation of Title VII, whether or not concrete benefits of
employment were conditioned on acquiescence. The Court found that the
complainant=s voluntary sexual participation did not overcome her claim
that the sexual attention was unwelcome.

*Harris v. Forklift Systems, Inc.* 510 U.S. 17 (1993) - Sexual
harassment need not have caused tangible harm, such as a mental
breakdown, to violate Title VII, if it was sufficiently severe or
pervasive to alter conditions of employment. The test is both objective
and subjective: would a reasonable person find the environment hostile
or abusive, and did the victim so find it? All circumstances must be
considered, rather than looking at individual incidents in isolation.

*Oncale v. Sundowner Offshore Services, Inc.* 523 U.S. 75 (1998) -
Unlawful sexual harassment may be directed to someone of the same sex as
the perpetrator*.* However, Title VII does not prohibit all verbal or
physical harassment in the workplace, but is directed only at
discrimination because of sex. ASimple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.@

*Faragher v. Boca Raton,* 97 U.S. 282 (1998) and *Burlington Industries
v. Ellerth*, 97 U.S. 569 (1998) - An employer is always liable for
sexual harassment of one of its employees by one of its supervisors
where there has been a *tangible employment action*. It may be held
vicariously liable for other sexual harassment of an employee by one of
its supervisors even if the employer was unaware of the harassment. The
employer may raise a two-part defense: 1. That the employer exercised
reasonable care to prevent and correct promptly any sexually harassing
behavior, and 2. That the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise. (The Court here noted that *quid
pro quo* and Ahostile environment@ are terms created by case law and not
statute.) While proof that an employer had promulgated an
anti-harassment policy with complaint procedure is not necessary in
every instance as a matter of law, the presence and appropriateness of a
policy will certainly come up in litigation. As the facts in *Faragher*
illustrate, a policy that is not communicated to employees will not
constitute much of a defense.

If the agency charges a harasser under its own regulation, which does
not simply mimic Title VII, it need not prove all elements of the Title
VII standard, but must prove that the conduct occurred and violated the
regulation. See for instance, *Alsedek v. Army*, 58 M.S.P.R. 229 (1993).

**G. Theft.** The lead case is *King v. Nazelrod and MSPB*, 43 F.3d 663,
(Fed. Cir. 1994). The court affirmed the Board\'s holding that requires
proof of intent to permanently deprive the owner of possession and use
of property. However, see also *Heath*, cited in Section I, above.
*Heath* and *Mann v. DHHS*, 78 M.S.P.R. 1 (1998) have useful discussions
about what may be considered a Athing of value.@ Agencies sometimes
charge **unauthorized possession** if they are not sure they can prove
Aintent to permanently deprive.@.

**H. Misuse ofY**Employees have always been subject to discipline for
misuse of Government time, equipment, and materials. This category is
distinguishable, because there is not a body of precedent that
establishes consistent elements and burdens of proof. However, it is
worth including because of the extreme and growing interest expressed by
practitioners.

There are a few issues that commonly arise in these cases, regardless of
whether they deal with misuse of a credit card, a computer, or something
more intangible, such as an account number. For instance, the existence
and specific language of any agency policy will be relevant as well as
the clarity with which the policy was publicized and enforced. There are
cases, such as *Tallis v. Navy*, 20 M.S.P.R. 108 (1984), that turn
entirely on whether the employee had tacit or explicit permission from a
superior for use that could otherwise have been chargeable as
misconduct.

*Johnson v. Treasury*, 15 M.S.P.R. 731 (1983) involves charged misuse of
both a **Government credit card**, and a Government telephone. *Baracker
v. Interior*, 70 M.S.P.R. 594 (1996) also involves misuse of a
Government credit card for personal business. *Phillips v. GSA*, cited
under **Insubordination**, above, is not a misuse case, but the order in
question was to prove payment on her Government credit card. Neither the
Board nor the court suggested the agency could not give such an order
and expect to be obeyed.

*Aiu v. Justice*, 70 M.S.P.R. 509 (1996) is a good case with respect to
both **willful misuse of a Government vehicle** and misuse of a
sensitive (in this case, law enforcement) **database**. With respect to
the former charge, there was significant discussion about the meaning of
Awillful@ under 31 U.S.C.A. \' 1349(b), which prescribes a mandatory
30-day suspension for willful misuse of a Government vehicle. The second
charge was actually **misuse of** appellant=s A**office** as criminal
investigator@ by using the agency database to run an improper background
check.

There are a number of cases that speak more explicitly to misuse of a
Government computer. One of the sustained charges in *Avant v. Air
Force*, 71 M.S.P.R. 192 (1996), was A**using Government resources to
conduct private business affairs**.@ In *Bishopp v. Air Force*, 75
M.S.P.R. 33 (1997), the two sustained instances related to appellant=s
**misuse of the agency electronic mail system** to send bizarre messages
to the commander. It is useful to contrast the penalty analysis in that
case with *Rush v. Air Force*, 69 M.S.P.R. 416 (1996). The former
appellant had severe psychiatric problems that contributed to her
misconduct, and there was no showing it impeded agency business. The
second was a flagrant, repeat misuser of the internet and email access
she enjoyed. Similarly, the appellant in *Cobb v. Air Force*, 57
M.S.P.R. 47 (1993), was found to have used the computer and associated
printer repeatedly to attend to personal business while neglecting her
work, and had committed misconduct in the past. Removal was sustained on
review for both *Rush* and *Cobb*. In *Dolezal v. Army,* 58 M.S.P.R. 64
(1993), the content of the charged improper emails was clearly a
consideration. The senior executive in that case was carrying on an
adulterous affair with a subordinate employee, and using the agency
email system to further the affair and disparage the intervening
supervisor.

Both charges in *Morrison v. NASA*, 65 M.S.P.R. 348 (1994) relate to
computer misuse. He was charged with Amisuse of Government resources,@
and with A**exposing individuals in the work environment to sexually
explicit material**.@ As background, an examination of the computer he
used found 148 files that generated sexually explicit images and 358
computer games. A coworker was actually exposed to one of the sexually
explicit files.