ADVERSE ACTION 

CHARGES

MSPB AJ Craig A. Berg

Foley Hoag Training
Adverse Actions

-Removal

-Reduction-in-Grade

-Reduction-in-Pay

-Furlough of 30 days or less

-Suspensions of more than 14 days
Burden of Proof at MSPB

• The agency has the burden to prove the 

charge by a preponderance of the 

evidence:

• “The degree of relevant evidence that a 

reasonable person, considering the record 

as a whole, would accept as sufficient to 

find that a contested fact is more likely to 

be true than untrue.” 

5 C.F.R. § 1201.56(c)(2).
Types of Charges 

 1. Descriptive/Specific Charge

 2. Generic Charge-Ex. Improper 

Conduct

 3. Narrative Charge-No label

Parts of a charge

 

 1. Charge label 

 2. Specifications 

 3. Legal elements 

Burroughs v. Army. 918 F.2d 170

(Fed. Cir. 1990)

 
Due Process Issues

• 5 USC 7513-Notice and Opportunity to be 

heard.

• 30 days advance written notice

• Reasonable time to answer orally and in 

writing

• Right to representation

• Written decision stating reasons for action
Due Process (Cont.)

Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 

1999) & Ward v. US Postal Service, 634 

F.3d 1274 (Fed. Cir. 2011).

• Deciding official may not consider new 

and material information without 

affording appellant opportunity to 

respond.

• Applies to both evidence on merits and 

aggravating factors considered in 

penalty determination.

• Violation will lead to summary reversal.
Common Charging Issues

• Splitting of Charges (All or Nothing)

– Splitting of a unified charge is impermissible. Burroughs, 918 F.2d 170.

• Merger of Charges

– While an agency may take a single instance of misconduct and prepare 

charges containing several specifications, the Board will merge charges 

if they are based on the same conduct and proof of one charge 

automatically constitutes proof of the other charge. Shifflett v. Dept. of 

Justice, 98 MSPR 289, 292 ¶5 (2005); Mann v. DHHS, 78 MSPR 1 (1998)

• Multiple Specifications Under a Single Charge

– If a single charge has multiple specifications, an Agency need only 

prove one specification to sustain the charge. Avant v. Dept. of the Air 

Force, 71 M.S.P.R.192, 198 (1996).

• Lesser Included Offenses

– A judge may not eliminate elements of a charge brought by the Agency 

and find the Appellant guilty of a lesser offense. Greenough v. Dept of 

the Army, 73 MSPR 648 (1997).
Charging Issues, Cont’d.

• Criminal Offenses

– If an agency charges an individual with a criminal offense, the agency 

must prove the elements of the offense. Knuckles v. US Postal Service, 

1 MSPR 358, 359 (1980).

– Can’t charge with getting arrested (exception is indefinite suspension)

– Underlying Conduct vs. Conviction
“Loaded” Words

• Words implying intentional misconduct may 

require an agency to prove that element of 

intent: “knowingly,” “willfully,” “threatened,” 

etc.

• Board may examine the “structure and 

language of the proposal notice” to determine 

how charges are to be construed.
CHARGES REQUIRING PROOF 

OF INTENT

• Intent is a state of mind and is generally proven by circumstantial 

evidence. Riggins v. DHHS, 13 MSPR 50 (1982). Examples:

• Theft - intent to deprive the owner permanently of possession and 

use of the property. King v. Nazelrod, 43 F.3d 663, 665-67 (Fed. Cir. 

1994).

• Threat – reasonable person test applied to: listener’s reactions and 

apprehension of harm; speaker’s intent; the circumstances; and if 

conditional. Metz v. Treasury, 780 F.2d 1001, 1004 (Fed. Cir. 

1986); Wiley v. Treasury, 102 MSPR 535.

• Insubordination - willful and intentional refusal to obey an 

authorized order of a superior officer which the officer is entitled to 

have obeyed. Phillips v. GSA, 878 F.2d 370 (Fed. Cir. 1989).

• Falsification – knowingly providing wrong information with the 

intention of defrauding, deceiving, or misleading the agency. Naekel 

v. Dept of Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); 

George v. Army, 104 MSPR 596.
CHARGES WITH ELEMENTS, 

NOT REQUIRING INTENT

• Misuse of Government Property – misuse or unauthorized use 

means use for purposes other than those for which the property is 

made available, or other than those authorized by law, rule, or 

regulations. 5 C.F.R. § 2635.704; Martin v. Transportation, 103 

MSPR 153 (computers); Crawford-Graham v. DVA, 99 MSPR 389 

(telephones); Quarters v. DVA, 97 MSPR 511 (government charge 

card).

• AWOL – the employee was required to be at the duty station; s/he 

was absent; and the absence was not authorized or a leave request 

was properly denied. If based upon a denial of LWOP, the Board 

will determine whether the denial was reasonable. Johnson v. DLA, 

54 M.S.P.R. 370 (1992). FMLA issues, agency has burden.
• Failure to Follow Leave Requesting Procedures – the 

agency has procedures for requesting leave; the employee 

knew what the procedures are; and s/he failed to follow 

them. Wilkinson v. Dept of the Air Force, 68 M.S.P.R. 4 

(1995). Approval of FMLA leave does not negate the charge 

but the question is whether the agency interfered with the 

appellant’s rights under FMLA in bringing the charge. The 

agency must show that it did not violate the appellant’s 

FMLA rights regarding notice of absences (5 C.F.R. 

§ 630.1206) and the provision of timely medical 

documentation (5 C.F.R. § 630.1207) in response to the 

agency’s request. Somuk v. Navy, 117 MSPR 18 (2011). 

• Failure to Follow Instructions - proper instructions were 

given and the employee failed to follow them. Hamilton v. 

US Postal Service, 71 M.S.P.R. 547 (1996); Grubb v. 

Interior, 96 MSPR 361 (2004).
CHARGES WITH ELEMENTS, 

NOT REQUIRING INTENT

• Lack of Candor - elements depend on context and 

conduct; may involve failure to disclose something that 

should have been disclosed to make a statement 

accurate and complete. Ludlum v. Justice, 278 F.3d 

1280, 1284 (Fed. Cir. 2002); Hoofman v. Department of 

the Army, 2012 MSPB 107 (Sept. 18, 2012)

• Unauthorized Use of an Official Government Vehicle

– Mandatory 30-day suspension under 31 U.S.C. §

1349(b) if conduct was willful or done with reckless 

disregard. Can charge simple misuse, statute is not 

invoked.
Not requiring intent, continued

• Sexual Harassment (Title VII) – Unwelcome sexual advances, 

requests for sexual favors, and other verbal and physical conduct of 

a sexual nature constitute sexual harassment when: Submission to 

such conduct is made either explicitly or implicitly a term/condition of 

an individual’s employment; Submission to or rejection of such 

conduct by an individual is used as the basis for employment 

decisions affecting such an individual. If charge based on hostile 

environment, conduct must be offensive, based on the victim’s sex, 

unwelcome, and sufficiently severe or pervasive to interfere with the 

victim's job performance or to create an abusive work environment. 

Hillen v. Army, 66 MSPR 68 (1994).

• Approved Leave – not a valid charge unless: absence is for 

compelling reasons beyond employee’s control so that approval or 

denial of leave was immaterial; absence went beyond a reasonable 

period; employee was warned of consequence if s/he did not return 

to duty; and the position needs to be filled on a regular, full- or parttime basis. Cook v. Army, 18 M.S.P.R. 610 (1984).
Questions??
THANKS FOR YOUR ATTENTION!