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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 *Second-Hand News Can be Misleading*
It may seem ironic to warn readers – in a  series of articles discussing and summarizing cases – that they should be leery  of placing too much trust in articles that purport to describe cases.  Yet, this article is about precisely  that.  While journalists and analysts –  and MSPB attorneys – writing about employment cases can serve an important  function in reaching an audience and drawing their attention to issues, the  information is only as reliable as the second-hand author makes it.  The best way to know for certain what a case  says is to read it yourself.  If that is  not practical, then get your information from the most reliable source you can  and be careful about assuming that a source is reliable.  You might be surprised at how often seemingly  “reliable” sources at best, get things wrong, and at worst, mischaracterize issues.
For example, recently, Congressional and media  attention was given to a case in which the Environmental Protection Agency  (EPA) attempted to remove an employee who allegedly was a sex offender who had  violated his probation regarding a charge of indecency with a child.  The EPA proposed and then implemented the  removal action, and the employee subsequently filed an appeal with MSPB.  In the initial decision, the administrative judge  overturned the action after determining it was necessary in accordance with  long-established law.  The media was  later filled with stories of outrage, including stories of frustration by members  of Congress, that MSPB would – *for some  inexplicable reason* – think it was appropriate to have child molesters in  the civil service.  (Hint:  when something seems to defy logic, that can  be a warning sign that the story may be either wrong or incomplete.)
In the EPA case, the agency’s sole charge for  removal was “unauthorized absence” – not abuse of a child, violation of  probation, or other criminal conduct.1  This pivotal fact was not raised in the  testimony before Congress, nor did it appear in most media reports about the  case.  There also did not seem to be any  discussion of the fact that, before the removal, the agency sought to  indefinitely suspend the employee on the basis of a reasonable belief that the  employee committed a crime for which he could be imprisoned.  That suspension was also appealed.  In both the initial decision, and on review,  the Board held that, consistent with established case law, the agency was  permitted to place the employee on indefinite suspension until the criminal  proceedings were resolved.2   What the Board may have done in a review of  the initial decision for the removal case – where only absence was charged –  cannot be known, because the agency and appellant chose to settle the case before  Board review could occur.3
One of the many risks that  come with assuming that a second-hand source has the news right – particularly  when dealing with civil service laws, rules, and regulations – is that it may  affect how agencies and employees view their own rights and options.  If all a person were to read was media  accounts, he or she might walk away thinking Federal agencies are regularly  forced to employ child 
  molesters who violate probation and the  agencies can do nothing about it.  We  cannot say what might have happened at MSPB if the agency had tried to remove  this employee for a probation violation, abuse of a child, or other criminal  activity, because – as stated above – the agency did not use any of those  charges in the removal action appealed to MSPB and MSPB is only allowed to  consider the charges presented to it.4   Nevertheless, the Board has an extensive  history of sustaining removals for egregious off-duty misconduct, including  (but not limited to) sexual abuse of children.5  This fact, of course, was not included in the  media reports covering this event.
The incomplete story of what happened in the  EPA’s case is just one example of misunderstandings about adverse actions that  have been circulated in recent years.  As  part of our 2015 report, *What is Due  Process in Federal Employment*, we created a list of misperceptions and  corrections about the adverse action system because so many inaccurate  statements had been given a gloss of credibility that it could have posed an  obstacle to having conversations about what the system really is and why.  Understanding this “what” and “why” is  crucial to managers and employees being able to use the system and to Congress  being able to successfully modify it if Congress deems modifications  appropriate.
Throughout our series of articles  about adverse actions, it will be necessary for brevity to summarize cases and  their holdings.  This can be a valuable introduction  to subjects and a useful tool for users of the system and others with an  interest in it.  But, readers should keep  the healthy skepticism that is so important when looking at what others say  about cases.  Focus on *why* a case had a particular  outcome.  Do not assume how your own set  of facts might be viewed based on a few sentences describing one aspect of  other cases.  These articles are a  starting place to help readers form a picture of how the system operates and to  identify what pieces they want explore in greater depth on their own.  Media articles and conversations with people  who have used the system can certainly be helpful in learning about the process,  but we encourage you to dig deeper in order to fully understand an issue.  If something sounds odd, ask a follow-on  question or do some research of your own.   Why?  Because whether you are a  member of Congress, a first-line supervisor in the field, or an employee  seeking help, there may be some very inaccurate information reaching you.
1 *Taylor M. Sharpe v. Environmental Protection Agency*,
      Docket No. DA-0752-14-0187-I-1, Initial Decision (Sept. 22, 2014).
  2 *Taylor M. Sharpe v. Environmental Protection Agency*, Docket No.  DA-0752-14-0034-I-1 (Feb. 27, 2015).   As the Board noted in its decision, the U.S. Court of Appeals for the  Federal Circuit has held that any continuation of a suspension after criminal  charges are resolved is a separate appealable action.  *Id*.  at ¶ 8.
  3 *Taylor M. Sharpe v. Environmental Protection Agency*, Docket No.  DA-0752-14-0187-I-1, Non-Precedential Final Order (Mar. 20, 2015).
    4 *Dupont v. Department of the Navy*, 33  M.S.P.R. 122, 126 (1987) (explaining that the Board will not consider other or  lesser offenses when the agency did not charge the appellant with such  offenses).  *Cf*. *Burroughs v. Department of the Army*, 918 F.2d 170, 172  (Fed. Cir. 1990) (explaining that the Board cannot “split a single charge of an  agency into several independent charges and then sustain one of the  newly-formulated charges, which represents only a portion of the original  charge.  If the agency fails to prove one  of the elements of its charge, then the entire charge must fall.”)
  5 *See, e.g.,* *Graham v. U.S. Postal Service*, 49 M.S.P.R. 364, 367 (1991) (finding that removal was a reasonable  penalty for off-duty sexual abuse of a 14-year-old girl); *Allred v.  Department of Health and Human Services*, 23 M.S.P.R. 478 (1984) (sustaining  a removal for off-duty child molestation), *aff’d,* 786 F.2d 1128 (Fed.  Cir. 1986); *Doe v. National Security Agency*, 6 M.S.P.R. 555 (1981) (determining  that removal was warranted for off-duty incestuous behavior with a minor  child), *aff’d sub nom.* *Stalans v. National Security Agency*, 678  F.2d 482 (4th Cir. 1982).  *Cf*. *Hayes v. Department of the Navy*,  15 M.S.P.R. 378, 381 (1983) (determining that removal was reasonable for  off-duty assault and battery of a 10-year-old child), *aff’d*, 727 F.2d  1535 (Fed. Cir. 1984).


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