UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 56

Docket No. SF-0752-14-0199-I-1


### Patrick G. Hollingsworth, Appellant,

v. Department of the Air Force, Agency. July 23, 2014

Patrick G. Hollingsworth, Nort h Las Vegas, Nevada, pro se. Basil R. Legg, Joint Base Andr ews, Maryland, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that affirmed his removal for tardiness. Becau se the agency failed to prove that the appellant was tardy, we REVERSE the in itial decision. The removal is NOT
SUSTAINED.

BACKGROUND ¶2 The appellant was a GS-05 Secretary (O ffice Automation) for the agency. Initial Appeal File (IAF), Ta b 1 at 2, Tab 4 at 11. Effective November 22, 2013, the agency removed him on a charge of tardiness based on a total of 7 hours and2

30 minutes of absence without leave (A WOL) incurred during four separate instances between September 6 and October 7, 2013. IAF, Tab 4 at 11-13, 24-25. In arriving at the removal penalty, the deciding offici al considered, among other things, the appellant’s su bstantial history of pr ogressive discipline for attendance-related problems. Id . at 12, 15, 26. ¶3 The appellant filed a Board appeal and waived his right to a hearing. 1 IAF, Tab 1 at 3-4. The administrative j udge affirmed the removal on the written record. IAF, Tab 10, Initia l Decision (ID) at 1, 14. He found that the appellant was scheduled to report for duty at 8:30 a.m., but he reported 1 hour late on September 9, 2013, 2 hours late on Sept ember 13, 2013, and 2 hours late on October 7, 2013. ID at 4-5; IAF, Tab 9 at 22-23. The admini strative judge also found that the appellant would have had to report at 8:00 a.m. on September 6, 2013, in order to meet his 80-hour requirement for the pay period, and that the appellant reported 30 mi nutes late on that date. ID at 4; IAF, Tab 9 at 22. The administrative judge therefore sustained the charge. 2 ID at 5.

ANALYSIS ¶4 An agency is not require d to affix a label to a charge but may simply
describe actions that constitu te misbehavior in narrative form in its charge letter; however, if the ag ency chooses to label an act of alleged misc onduct, then it must

1 In addition to his removal, it appears that the appellan t attempted to challenge his prior 1-, 5-, and 14-day suspensions. IAF, Tab 1 at 4, Tab 4 at 35-36, 42-43, 49-50. None of these actions is directly appealable to the Board because the Board’s chapter 75 jurisdiction extends only to susp ensions of more than 14 days. 5 U.S.C. § 7512 (2); Stewart v. Department of Defense , 82 M.S.P.R. 649 , ¶ 15 (1999).

2 Although the administrative ju dge found that the appellant was tardy for a total of 5 hours and 30 minutes rather than the 7 hours and 30 minutes that the agency specified in its charge, he did not find this discrepancy to be material. ID at 5; IAF, Tab 4 at 24; cf. Senior v. U.S. Postal Service , 85 M.S.P.R. 283 , 289 (2000) (the Bo ard may sustain a charge of AWOL even when the agency fails to prove that the appellant was AWOL for the entire period).3

prove the elements that make up the lega l definition of the charge, if any. Otero v. U.S. Postal Service , 73 M.S.P.R. 198 , 202 (1997). In this case, the agency charged the appellant with “tardiness.” IAF, Tab 4 at 24. The Board has not established the elements for a charge of tardiness. Ho wever, it is not a generic charge such as “impr oper conduct” or “conduct unbecoming” that does not require specific el ements of proof. Cf. Canada v. Department of Homeland Security , 113 M.S.P.R. 509 , ¶ 9 (2010) (a charge of “improper conduct” or “conduct unbecoming” has no specific elemen ts of proof; it is established by proving that the employee committed the acts alleged in s upport of the broad label). A plain and ordi nary understanding of the te rm “tardiness” implies unexcused lateness. Merriam–Webster’s Co llegiate Dictionary 1202 (10th ed. 2002) (to be tardy is to be “delayed beyond the e xpected or proper time”). ¶5 In this case, the administrative judge implicitly analogized the charge of tardiness with a charge of AWOL. ID at 3. He f ound that to prove a charge of tardiness, the agency must show that: (1) the empl oyee was scheduled for duty; (2) the employee was late for duty for the time charged; a nd (3) either the employee’s absence was not authorized or his request for leave was properly denied. ID at 3; cf

. Boscoe v. Department of Agriculture , 54 M.S.P.R. 315 , 325 (1992) (to prove an AWOL charge, an ag ency must show that the employee was absent from duty, and either that his ab sence was not authorized or that his request for leave was pr operly denied). Neither party challenges the administrative judge’s cons truction of the charge, and we agree that it is appropriate. It is consis tent with the Federal Ci rcuit’s constr uction of a “tardiness” charge in Bryant v. National Science Foundation , 105 F.3d 1414 , 1416-17 (Fed. Cir. 1997), a nd the Board’s construction of the same in Mahnken v. U.S. Postal Service , 34 M.S.P.R. 1 , 3-5, aff’d , 835 F.2d 871 (Fed. Cir. 1987) (Table). It is also cons istent with the general prin ciple that an agency cannot discipline an employee for approved absences. See Cook v. Department of the Army , 18 M.S.P.R. 610 , 611-12 (1984); Watson v. U.S. Postal Service ,4

13 M.S.P.R. 56 , 58 (1982). The appellant does not dispute his arrival times on the days in question or di rectly challenge the appr opriateness of the removal penalty for the sustained ch arge. He disputes only wh ether the charge should be sustained at all—specifical ly, whether the arrival tim es constituted tardiness within the parameters of hi s flexible work schedule. ¶6 The administrative judge ad judicated this issue as an affirmative defense of
harmful error or action take n not in accordance with the law, for which the appellant bears the burden. ID at 6-11; IAF, Tab 7 at 4-5; see 5 U.S.C. § 7701 (c)(2)(A), (C); 5 U.S.C. § 1201.56 (a)(2)(iii). However, we conclude that it
is better construed as an argument that the agency fail ed to meet its burden of proving an element of its ch arge, i.e., that the appell ant was scheduled to report for duty before the arri val times at issue. See 5 U.S.C. § 7701 (c)(1)(B) (an agency bears the burden of suppor ting a chapter 75 adverse action by preponderant evidence); 5 C.F.R. § 1201.56 (a)(1)(ii) (same). ¶7 As explained above, the onl y dispute in this case pertains to whether the appellant was required to be on duty during the periods for which the agency carried him in AWOL status. For the re asons explained below, we find that the agency failed to prov e that he was. ¶8 The parties agree th at the appellant wa s subject to a “Max iflex” schedule. IAF, Tab 8 at 4, Tab 9 at 5, 21. The Department of Defens e (DOD) defines such schedules as follows: Maxiflex. Maxiflex is a flexible work schedule that contains core hours on fewer than 10 work days in the biweekly pay period and in which an employee has a basic work requirement of 80 hours for the biweekly pay period. The empl oyee may vary the number of hours worked on a given workday or the number of hours each week, within the limits establis hed for the organization.5

DOD Financial Management Regulation (FMR) 7000.14-R, Volume (Vol.) 8, Chapter (Ch.) 2 at 8 (June 2013). 3 One limit that the agency placed on the appellant’s schedule was that he needed to perform al l of his work between 7:00 a.m. and 5:00 p.m., Monday through Friday. IAF, Tab 8 at 15, Tab 9 at 21. Although the appellant alle ges that this limitation violated the applicable collective bargaining agre ement and OPM’s regulati ons regarding flexible schedules, IAF, Tab 1 at 6, we find th at it is consistent with the agency’s regulation regarding Maxi flex schedules, with OP M’s Handbook on Alternative Work Schedules, and with the provisions of the applicable collective bargaining agreement recognizing manage ment’s authority to “s tabilize employees’ work schedules within the administ rative work week,” IAF, Tab 9 at 26. We find no
basis to conclude that th is limit on the appellant’s work schedule was improper. ¶9 The agency also argues that the appe llant was required to report for duty no later than 8:30 a.m. each day because that is the latest th at he could arrive at work and complete an 8-hour day with a 30- minute lunch break by 5:00 p.m. IAF, Tab 9 at 9, 21. As explained above, the tardiness charge was premised, in large part, on this 8:30 a.m. repor ting time. IAF, Tab 4 at 24. For the following reasons, we find that the agency failed to establish by preponderant evidence that the appellant was re quired to report to work by 8:30 a.m. ¶10 We agree with the appellant that th e agency failed to show that it designated “core hours” for his work sche dule. Petition for Review (PFR) File, Tab 1 at 5. Under the Office of Personnel Manageme nt’s Handbook on

3 Although this is a DOD regulation, it purports to apply to all entities organized under the DOD, including the appellant’s employing ag ency, the Department of the Air Force. DOD FMR 7000.14-R, Introduction at 3. Neither party disputes the applicability of this regulation. See IAF, Tab 9 at 21. Th e definition of a Maxiflex schedule in the DOD FMR is the same as that in the Office of Personnel Management’s (OPM) Handbook on Alternative Work Schedules, http://w ww.opm.gov/policy-data-oversight/payleave/reference-materials/handbooks/alterna tive-work-schedules/ (last visited July 7, 2014).6

Alternative Work Schedul es, http://www.opm.gov/policy-data-oversight/payleave/reference-mate rials/handbooks/alter native-work-schedul es/, “core hours” are “[t]he time periods during the wor kday, workweek, or pay period that are within the tour of duty during which an employee covered by a flexible work schedule is required by the agency to be present for work.” Nowhere in the agency’s submissions do the words “core hours” appear. Arguably, under the agency’s theory of the case, the appellan t had de facto core hours of 8:30 a.m. to 3:30 p.m. because he would always need to be present during these times in order to complete an 8-hour wo rkday within the hours of 7:00 a.m. and 5:00 p.m. However, this is inconsiste nt with the agency’s defi nition of “Maxiflex,” which provides that such schedules contain co re hours on fewer than 10 work days in the biweekly pay period. DOD FMR 7000.14-R, Vol. 8, Ch. 2 at 8. This is also inconsistent with how the agency trea ted the appellant’s attendance during the pay period spanning August 25 through September 7, 2013. After he worked just 7 hours and 30 minutes on September 5, 2013, the agency ch arged him AWOL only when he failed to make up the deficiency by the end of the pay period. IAF, Tab 4 at 62-63, Tab 9 at 22. ¶11 Furthermore, the two agency memoranda purporting to inform the appellant of his work schedule are c onfusing at best. The firs t, dated January 17, 2012, states that “Max iflex allows flexible start/stop times,” and that the appellant’s “Current Work Schedule is [8:30 a.m.] to [5:00 p. m.] with 30 minute lunch.” 4 IAF, Tab 8 at 14. This me morandum is internally contra dictory because it states that the appellant ha s flexible start and stop times but also appears to set forth a fixed work schedule. Id . It is also inconsistent with a February 1, 2013

4 The record also contains two notices of proposed suspension and a progress review worksheet that similarly state that the appell ant’s “normal” or “current” work schedule was 8:30 a.m. to 5:00 p.m. IAF, Ta b 4 at 31, 37, 53.7

memorandum, which states only that the appellant will “normally” work an 8-hour day within the hours of 7:00 a.m. a nd 5:00 p.m. Id . at 15. ¶12 Based on this confusing and contradictory evidence and the agency’s failure to show that it desi gnated any core hours for the a ppellant, we find that it failed to show that he wa s scheduled to report for duty at 8:30 a.m. each day as alleged. Because the agency failed to show that the appellant was scheduled to report for duty by a spec ific time, we find th at it failed to prove that the appellant was tardy on September 9, 2013, September 13, 2013, or October 7, 2013. IAF, Tab 4 at 24. ¶13 The agency’s theory of tardiness for Septembe r 6, 2013, is somewhat different. That was the la st date of the 80-hour pay pe riod, and the appellant had only accounted for 71 hours and 30 minutes of work and leave leading up to that date. Id . at 62-63; IAF, Tab 9 at 22. Thus, the agency reasons that the appellant would have had to arrive at work no late r than 8:00 a.m. in order to complete 8 hours and 30 minutes of work by 5:00 p.m. and to me et his 80-hour pay period requirement. IAF, Tab 9 at 22. The appell ant failed to meet this requirement and was charged AWOL for 30 mi nutes because he did not report unt il 8:37 a.m. IAF, Tab 4 at 62, Tab 9 at 22. ¶14 We disagree with the agen cy’s theory. First, as explained above, the agency failed to establish that the appellant had any particular time, scheduled in advance, by which he was re quired to report to work. The practical matter of having to report at 8:00 a.m. in order to log 8 hours and 30 minutes of work time on a given date does not equate to being scheduled to report at that time. Second, we disagree with the basic premise that the appellant failed to meet his 80-hour pay period requirement becau se he was “late” for work 1 day. Although the appellant could have met his 80-hour requirement by wo rking from 8:00 a.m. to 5:00 p.m. on September 6, 2013, he could have met the re quirement in other ways as well, such as working more hours on another day or reque sting and obtaining leave to cover the de ficiency. In other words, th e appellant fell short of his8

80-hour requirement not becaus e of his arrival time on the last day of the pay period but because of the sum of his acti ons throughout the entire pay period. We therefore find that the appellant was not scheduled to report for duty at 8:00 a.m. on September 6, 2013, and, cons equently, that the agency failed to show that he was tardy on that date. ¶15 This case is not about whether the agency has the auth ority to set the appellant’s work schedule or to pl ace limits on any flexible schedule. 5 Rather, this case concerns what sc hedule the agency actually se ts for the appellant. As explained above, the agency failed to provi de sufficient eviden ce for us to make a finding on the issue. Supra ¶¶ 10-12. The agency itself does not seem to comprehend the appellant’s work schedule clearly, as it submitted evidence showing variously that the appellant was scheduled to work from 8:30 a.m. to 5:00 p.m. every weekday, th at he was scheduled to wo rk 8 hours per day any time between 7:00 a.m. and 5:00 p. m. each weekday, and th at he was scheduled to complete 80 hours of work in each biweek ly pay period as long as he did so on weekdays between 7:00 a. m. and 5:00 p.m. Supra ¶¶ 8-12. Also, as explained above, the agency’s charge appears to be premised on two conflicting theories of what the appellant’s work schedule was. Supra ¶ 10. For these reasons, the charge and the remova l are not sustained.

ORDER ¶16 We ORDER the agency to retroactivel y cancel the appellant’s removal and to restore the appellant effective November 22, 2013. See Kerr v. National

5 Because we reverse the removal on other grounds, we do not r each the appellant’s argument that, because he had a Maxiflex sc hedule, designation of his absences due to tardiness as AWOL was coercion that was prohibited by 5 U.S.C. § 6132 . PFR File, Tab 1 at 5-6. Under that provision, an empl oyee may not intimidate, threaten, or coerce another employee based on his use of a flexible schedule as provided for in chapter 61 of Title 5.9

Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no late r than 20 days after the date of this decision. ¶17 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and othe r benefits under the Back Pay Act and/or Postal Service Regulations, as appropriate, no later th an 60 calendar days after the date of this decision. We ORDER th e appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest , and benefits due, and to provide all necessary informati on the agency requests to help it carry out the Board’s Order. If th ere is a dispute about the am ount of back pay, interest due, and/or other benefits , we ORDER the agency to pay the appellant the undisputed amount no late r than 60 calendar days after th e date of this decision. ¶18 We further ORDER the agen cy to tell the appellan t promptly in writing when it believes it has fully carried out the Board’s Order a nd to describe the actions it took to carry out the Board’s Order. The a ppellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶19 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appell ant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out th e Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’ s Order, and should include the dates and results of any communications w ith the agency. 5 C.F.R. § 1201.182 (a). ¶20 For agencies whose payro ll is administered by eith er the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adju stments resulting from a Board decision are attached. The agency is ORDERED to timely provi de DFAS or NFC with all documentation necessary to process paymen ts and adjustments resulting from the10

Board’s decision in accordance with the at tached lists so that payment can be made within the 60-day period set forth above. ¶21 This is the final decision of the Me rit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regul ations, section 1201.113(c) ( 5 C.F.R. § 1201.113 (c)).

NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by th e agency for your r easonable attorney fees and costs. To be paid , you must meet the requirem ents set out at Title 5 of the United States Code (U .S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);

or 38 U.S.C. § 4324 (c)(4). The regulati ons may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.203. If you believe you meet these requirements, you must file a motion fo r attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final deci sion by the United States Court of Appeals for the Federal Ci rcuit. You must su bmit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your request for review no la ter than 60 calendar days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very carefu l to file on time. The court has held that normally it does not have the author ity to waive this st atutory deadline and11

that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you th is right. It is found in Title 5 of the United St ates Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http ://www.mspb.gov/appeal s/uscode/htm. Additional information is av ailable at the cour t's website, www.cafc.uscourts.gov. Of particular rele vance is the court' s "Guide for Pro Se Petitioners and Appellants," which is contained within the court's Rules of Practice, and Forms 5, 6, and 11. If you are interested in securing pr o bono representati on for your court appeal, you may visit our website at http://www.mspb.gov/probono for a list of attorneys who have expres sed interest in providing pro bono representation for Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will ac cept representation in a given case.

FOR THE BOARD:

________________ ______________ William D. Spencer Clerk of the Board Washington, D.C.DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT CASES OR AS ORDERED BY THE MERIT SYSTEMS PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIR ED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEME NT CASES CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address and POC to send. 2. Statement that employee was counseled c oncerning Health Benefits and TSP and the election forms if necessary. 3. Statement concerning entitlement to overti me, night differential, shift premium, Sunday Premium, etc, with number of hours and da tes for each entitlement. 4. If Back Pay Settlement was prior to c onversion to DCPS (Defense Civilian Pay System), a statement certifying any lu mp sum payment with number of hours and amount paid and/or any severance pa y that was paid w ith dollar amount. 5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Atte ndance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS: 1. Copy of Settlement Agreemen t and/or the MSPB Order.

2. Corrected or cancelled SF 50's.

3. Election forms for Health Benefits and/or TSP if applicable.

4. Statement certified to be accurate by the employee which includes: a. Outside ear nings with copies of W2's or statement from employer. b. Statement that employee was ready, willi ng and able to work during the period. c. Statement of erroneous paym ents employee received such as; lump sum leave, severance pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew Retirement Funds. 5. If employee was unable to work during any or part of the period involved, certification of the type of leave to be char ged and number of hours.2

NATIONAL FINANCE CENTER CHEC KLIST FOR BACK PAY CASES Below is the information/documentation requir ed by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts

. 1. Initiate and submit AD-343 (Payroll/Ac tion Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD-343 for Restoration: a. Employee name a nd social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63) e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to c onversion. Computations must be attached. h. Indicate the amount of Severanc e and Lump Sum Annual Leave Payment to be collected. (if applicable) Attachments to AD-343 1. Provide pay entitlement to include Overtim e, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and date s for each entitlement. (if applicable) 2. Copies of SF-50's (Personnel Actions) or list of salary adjustment s/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period invol ved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restorati on Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computa tion Worksheet by Pay Period and required data in 1-7 above. The following information must be includ ed on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotio n, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a-g above. b. Prior to conversion computation must be provided. c. Lump Sum am ount of Settlement, and if taxable or non-taxable. If you have any questions or require clar ification on the above, please contact NFC’s Payroll/Personnel Operati ons at 504-255-4630.