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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *Labels Are Not Required, but if Used They Must be Proven*
Nothing in law or regulation requires that an  agency attach a label to a charge of misconduct. If it so chooses, the agency  may simply describe the actions that constitute misbehavior in a narrative form  and have its discipline sustained if the efficiency of the service suffers  because of the misconduct.1If, however, the agency chooses to use a label,  that label must be proven.  The U.S.  Court of Appeals for the Federal Circuit has held that an agency must prove  every element of a charge, including intent if that is an element.  For example, if an agency uses the label of  “theft” as its charge, then the agency must prove that the employee “intended  to permanently deprive the owner of possession” of the item in question.2  In contrast, an agency is not required to prove  intent as part of a charge of unauthorized possession of the property.3  Similarly, “[i]nsubordination by an employee is  a willful and intentional refusal to obey an authorized order of a superior  officer which the officer is entitled to have obeyed.”4  In contrast, a charge of failure to obey  orders does not require proof of intent.5Proving elements can become particularly  complex if the agency uses a label that has a specific meaning in a statute or  is defined in more than one place.  Take,  for example, the label of “sexual harassment.”   Such harassment can be defined in an agency policy as well as policy  issued by the Equal Employment Opportunity Commission, and either (or both) of  those definitions may vary from what a person drafting or reading the charges  may think of as “sexual harassment.”   This can result in a situation where an agency that uses the term  “sexual harassment” in a charge may be required to prove that the conduct meets  a formal definition, regardless of whether that was the drafting official’s  intent.  For example, in *Booker v. Department of Veterans Affairs*,  neither the notice of proposed action nor notice of decision defined the phrase  “sexual harassment.”  As a result, the  agency was required to meet the Title VII definition because of the content of  its agency’s policy which referenced Title VII.6However, it is not necessary for the agency to  use the term sexual harassment at all.   In *Morrison v. National  Aeronautics & Space Administration*, the Board affirmed the agency’s  penalty of a reassignment and 35-day suspension for loading sexually explicit  material on a Government computer and exposing individuals in the work  environment to that material.  The  appellant asserted that the agency had not proven that sexual harassment  occurred, but the Board held that the conduct did not need to rise to the level  of sexual harassment for the Board to sustain the agency’s action as the  charges that the agency used – loading and displaying the material – were  proven.7In *Brim  v. U.S. Postal Service*, the agency charged the appellant with sexual  harassment, but also charged conduct unbecoming a Postal Service employee based  on the same behavior.8  A charge of “conduct unbecoming,” much like a  charge of “improper conduct,” has no specific elements of proof; it is  established by proving that the employee committed the acts alleged in support  of the broad label.9  The Board found that the Postal Service did  not prove sexual harassment, but that because the unbecoming conduct in  question – sexually explicit comments within earshot of other employees – was  proven and was unacceptable in the workplace, a 30-day suspension was  permissible under the second charge.10In *Brim*,  the agency opted to have two separate charges.   That is something an agency is permitted to do, but also something that  the agency must do if it wishes to have more than one charge to be  independently examined.  MSPB is under  clear instructions from the Federal Circuit that it is not permitted to split a  charge and then sustain one of the newly created charges.  MSPB can only assess what it is given – not  make repairs to the underlying case.11This same rule applies to undefined labels used  in specifications.  For example, in *Thomas v. U.S. Postal Service,* the  agency asserted in a specification that the appellant “continually subjected”  another employee “to demeaning, sexually derogative comments.”  The agency did not describe “continually” and  the events later submitted as evidence, while serious, did not occur with the  necessary frequency or duration to meet the dictionary’s definition of  “continual.”  Accordingly, while the  Board sustained two other specifications related to specific events of  inappropriate touching on specific days, it was not able to sustain the  specification regarding comments because the agency had opted to use the word  “continually” without any details to shed light on what it meant for something  to be continual and the evidence did not meet the dictionary’s definition of  that word.12An agency will be required to prove it is more  likely than not that the conduct in question occurred, regardless of whether  the agency opts for a label for that conduct.13  However, if the agency chooses to use a  label, it will be required to prove that label as well as the underlying  conduct.  The more elements there are in  that label, the more elements there are for the agency to prove.
        1*Otero v. U.S. Postal Service*, 73 M.S.P.R. 198, 202 (1997).
          2*King v. Nazelrod*, 43 F.3d 663, 666-67 (Fed. Cir. 1994).
          3*Culley v. Defense Logistics Agency*, 60  M.S.P.R. 204, 212 (1993) (finding that the intent to permanently deprive is not  an element of unauthorized possession); *Castro  v. Department of Defense*, 51 M.S.P.R. 506, 510 (1991) (explaining that the intent  to permanently deprive is not an element of unauthorized removal of property).
          4*Phillips v. General Services Administration*, 878 F.2d 370, 373 (Fed.  Cir. 1989) (emphasis and internal notes omitted).
          5*Eichner v. U.S.  Postal Service*,  83 M.S.P.R. 202, 205 (1999); *Hamilton v. U.S. Postal Service,* 71  M.S.P.R. 547, 555–57 (1996).
          6*Booker v. Department  of Veterans Affairs*,  110 M.S.P.R. 72, ¶ 5 (2008).
          7*Morrison v. National Aeronautics  & Space Administration*, 65 M.S.P.R. 348, 352, 357-58 (1994).  *See  Cisneros v. Department of Defense*, 83 M.S.P.R. 390, ¶¶ 5-7, 17-20 (1999)  (holding that the agency proved its charge of “conduct unbecoming a Federal  employee” when it described the employee’s physical acts and statements that  had a sexual component), *aff’d*, 243  F.3d 562 (Fed. Cir. 2000).  *See Uske v. U.S. Postal Service*, 60  M.S.P.R. 544, 561-63 (1994) (sustaining the agency’s decision to remove an  employee for “conduct prejudicial to the Postal Service” when the employee  hired a prostitute to pose nude in the workplace, arranged for the photographs  to be published in a magazine, and informed others in the workplace of what he  had done), *aff’d*, 56 F.3d 1375 (Fed.  Cir. 1995).
          8*Brim v. U.S. Postal  Service*,  49 M.S.P.R. 494, 496–99 (1991).
          9*Canada v. Department of Homeland Security*, 113 M.S.P.R. 509, ¶  9 (2010).
          10*Brim v. U.S. Postal  Service*,  49 M.S.P.R. 494, 496–99 (1991).
          11*Burroughs v. Department of the Army*, 918 F.2d 170, 172  (Fed. Cir. 1990).  However, charges will  be merged when proof of either charge is automatically proof of the other  charge.  *Mann v. Department of Health & Human Services*, 78 M.S.P.R. 1, 7  (1998).  The fact that a charge has been  merged into another does not mean that the duplicative charge is not sustained  or that the appellant’s misconduct somehow becomes less serious by virtue of  the merger.  However, MSPB must examine  whether the penalty is reasonable for the merged charge.  *Shiflett  v. Department of Justice*, 98 M.S.P.R. 289, ¶ 12 (2005).
          12*Thomas v. U.S. Postal  Service*,  116 M.S.P.R. 453, ¶¶ 6-7 (2011).  While  the sustained charges may have otherwise supported removal, the case was  remanded to an MSPB regional office to address whether the agency violated the  appellant’s constitutional due process rights regarding the process by which it  reached its penalty.  *Id*. at ¶¶ 9-13.
          13 5 U.S.C. §  7701(c)(1)(b); 5 C.F.R. § 1201.4(q).


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