UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GLENN D. PARSONS - )

) DOCKET NUMBER

) DA07528010170

v. )

DEPARTMENT OF THE AIR FORCE

OPINION AND ORDER

This case is before the Board for the second time.

In an Opinion and Order issued June 11, 1981, we denied

review of the November 13, 1980 Initial Decision upholding

the removal of appellant, Glenn D. Parsons, from the

position of Fire Fighter at Tinker Air Force Base. The

agency, the Department of the Air Force, had taken the

removal action because appellant falsified a «> Standard Form

(SF) 71 and was absent without authorization (AWOL) .!/

Pursuant to 5 U.S.C. 7703, appellant sought judicial review

in the United States Court of Appeals for the District of

Columbia Circuit. On May 6, 1983, the Court remanded the

case to the Board to consider the appropriateness of the

penalty imposed upon appellant in light of Douglas v.

Veterans Administration, 5 MSPB 313 (1981). See Parsons

v. United States Department of the Air Force, 707 F.2d

1406 (D.C. Cir. 1983).

On remand, a si^nd hearing was held, and the parties

were afforded the </ p/^^nity to present furthe r evidence

and argument

I/Appellant was charged with being AWOL for three

days, but the presiding official found that his absence on

two of the three days was authorized. He was AWOL only on

March 22, 1980.
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on the penalty issue. The presiding officia!2/ concluded

that i deciding to remove appellant the agency had-no t

properly considered the relevant factors as required under

Douglas. In an Initial Decision dated December 30, 1983,

he therefore mitigated the penalty imposed upon appellant

*

to a 45-day suspension.

The agency now petitions for review, asserting that

the decision of the presiding official was based upon an

erroneous interpretation of statute or regulation. See

5 C.F-. ^. 1201.115 (b). Specifically, the agency contends

that the presiding official's decision to mitigat e

constituted an improper substitution of his judgment for

that of the agency and was therefore contrary to the Board's

ruling in Douglas. Appellant has responded to the agency's

petition, urging that it be denied. Because the presiding

official's analysis was not entirely consistent with

applicable precedents, we GRANT the petition for review.

The Board does accord considerable deference to agency

penalty determinations. As we stated in Douglas, 5 MSPB

at 332-33, "the Board's review of an agency-imposed penalty

is essentially to assure that the agency did conscientiously

consider the relevant factors and did stride a responsible

balance within tolerable limits of reasonableness." We added,

however, that deference is not appropriate where the Board

finds that the agency "failed to weigh the relevant factors,

or that the agency's judgment clearly exceeded the limit?

of reasonableness." Id. at 333. In such cases, it is

appropriate for the Board "to specify how the agency's

decision should be corrected to bring the penalty within

the parameters of reasonableness." Id. See also

2/The presiding official who issued the first Initial

Decision on this appeal no longer works in the Board's Dallas

Regional Office. On remand the case was heard by a different

presiding official.
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Davis v. Department of the Treasury, 8 MSPB 17, 19 (1981).

In remanding this case to the Board, the Court stated, "The

Air Force must present at least a prima facie case to the

MSPB establishing that it considered the factors relevant

to this particular case and that it reasonably chose to

impose this particular penalty." 707 F.2d at ,1412. Douglas

holds:

An agency may establish a prima facie case supporting

the appropriateness of its penalty by presenting to

the Board evidence of the facts on which selection of

the penalty was based, a concise statement of its

reasoning from those facts or information otherwise

sufficient to show that its reasoning is not on its fact

(sic) inherently irrational, and by showing that the

penalty conforms with applicable law and regulation.

When no issue has been raised concerning the penalty,

such a prima facie case will normally suffice to meet

also the agency's burden of persuasion on the

appropriateness of the penalty. However, when the

appellant challenges the severity of the penalty . . .

the agency will be called upon to present such further

evidence as it may choose to rebut the appellant's

challenge (.)

Id^r 5 MSPB at 334 (footnote omitted) . Douglas had not

yet been issued when the agency first decided to remove

appellant, but the agency's internal regulation on

"Discipline and Adverse Actions," AFR 40-750 (Appellant's

Exhibit F) , pursuant to which this action was*taken, includes

guidance on penalty selection which parallels that contained

in the Douglas .decision. The agency basically contends

that, even in light of appellant's challenge (before the

Court of Appeals and on remand) to the severity of the

penalty imposed upon him, the penalty of removal was

justified, and that the presiding official's conclusion to

the contrary was erroneous.
The presiding official correctly found that the agency

did not properly consider the relevant penalty-selection

factors. The agency's deciding official, Chief James W.

•*

Dun kin, acknowledged under cross examination that he would

have removed appellant for falsifying the SF-71 no matter

what his prior record was, even if it was unblemished (Tr.

80) J3/; that he di$3 not thin k about imposing a lesser

penalty (Tr. 84); and that falsification of a document

amounts to fraud , which results in automatic termination

(Tr. 93) . In response to essentially leading questions

pertaining to the Douglas factors posed by the agency's

representative he gave affirmativ e answers, see, e.g. ,

Tr. 15, 19, 34-36, 91, which might appear to reflect some

consideration on his part of those factors, but when the

agency's representative asked him to reconcile the apparent

discrepancy between automatically firin g someone who

falsifies a document and considering the individual's work

record and other matters his answer was unclear and

internally inconsistent. (Tr. 91-92). Chief Dunkin did not

give meaningfu l consideration to potential mitigating

factors, as required under both Douglas and APR 40-750.

Because the agency did not properly consider the

relevant factors, the presiding official was required to

-•»

specify how the penalty imposed upon appellant should be

correcte d to brin g it withi n the parameters of

reasonableness. The agency contends that the presiding

officia l gave insufficien t weight to appellant's past

disciplinary record, which consisted of a reprimand for

"failure to honor a valid and legal debt and failure to keep

(his) agreement to liquidate said legal indebtedness ,"4/

3/Ref erences to "Tr." are to the transcript of

appellant's November 1, 1983 hearing on remand.

4/In its petition for review, the agency characterizes

the offense for which appellant was reprimanded as going

back on his word or not being straightforward and truthful

with his supervisors. The letter of reprimand itself is

not in the record, but it is apparent from the wording used

to describe the offense in the notice of proposed removal

issued to appellant (quoted in the text of this Opinion and

Order) that the gravamen of the offense was nonpayment, not

dishonesty.
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The degree of consideration the agency itself gave

appellant's past disciplinary record is difficul t to

measure. While the notice of proposed removal issued- to

him stated that it was considered, Chief Dunk in's testimony

on the point was ambiguous. j>/ The presiding official noted

that "While . . . the determination of an appropriate penalty

for a current charge of misconduct'may include consideration

of prior discipline for unrelated charges, the fact is that

in this case appellant has received only a reprimand for

failure to properly discharge a debt." (Initial Decision

at 4). Regardless of whether the agency considered the

reprimand or not, the presiding official did consider it,

although he accorded it little weight. Given the record

before him, he should not have considered it at all.

In Boiling v. Department of the Air Force, 8 MSPB

658 (1981) , we held that an agency may utilize a prior

disciplinary action as an aggravating factor justifying the

imposition of an enhanced penalty, and the employee may not

relitigate the prior action in the context of a current

appeal, if three criteria are met: the employee was informed

of the action in writing; the employee had an opportunity

to dispute the action by having it reviewed on the merits

by a higher authority than the one taking -the action; and

the action was made a matter of record. In this case, the

Boiling^ criteria were not met. Appellant was therefore

entitled to de novo review of the incident which led to his

prior reprimand. Johnson v. Department of the Air Force,

11 MSPB 493 (1982).

j5/He said that the prior reprimand was considered,

but that the penalty of removal would have been imposed even

if appellant had had no prior record. (Tr. 78-80).
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It is apparent from the testimony of both Chief Dunkin

and appellant that appellant's reprimand corma^ned his

alleged failure to discharge a single debt to Ms former

landlady. (Tr. 37-41, 128-31). The landlady sent letters

about the debt to appellant's place of effi^l^y^ent, and

appellant's superiors discussed the matter wit ft him, but

• • • •

there is no evidence that his nonpayment had any actual or

potential deleterious effect on his performates or on the

agency's ability to carry out its mission. Therefore, under

Byars v. Department of the Army, 8 MSPB 561 (1981), and

Monterosso v. Department of the Treasury, 6 MSPB 573

(1981) , it did not promote the efficiency of the service

to discipline appellant for his failure to pay the debt

promptly. The agency was not entitled to rely on the debt

incident to support its decision to impose the harshest

available penalty on appellant for his subsequent

misconduct.

The agency asserts that the presiding official erred

in finding "that previous removal actions taken by Chief

Duncan (sic) against firefighters were not analogous to

appellant's case." (Petition for Review at 2). Chief Dunkin

testified that in 1977 or 1978 he decided to remove two fire

fighters who disobeyed direct orders to go *to fire fighting

school at another base. (Tr. 26, 32)* The agency's

contention that these cases were comparable to appellant's

lacks merit. The other employees were guilty of

insubordination? appellant was AWOL one day and falsified

a request for sick leave for that day. Virtually any sort

of misconduct can be characterized as a failure to obey some

order, rule, regulation, or standard. It does not follow,

however, that insubordination on one hand, and AWOL combined

with falsification on the other hand, should both be

categorized for penalty purposes as "deliberate attempts

to evade orders from a supervisor for purely personal

reasons" (Petition for Review at 2) and penalized in the

same fashion, without regard to the circumstances.
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Before the presiding official, appellant argued that

he was disciplined more harshly than other employees at

Tinker Air Force Base found to have falsified documents

and/or been AWOL. He introduced copies of decision letters

issued in 57 other cases (Appellant's Exhibits E1-E57) in

which, he contended, the agency imposed much less severe •».

penalties on similarly situated employees than on him. Where

an appellant raises an allegation of disparate treatment

in comparison to specified employees, the agency must prove

a legitimate reason for the difference in treatment by a

preponderance of the evidence before the challenged penalty

can be upheld. Woody v. General Services Administration,

6 MSPB 410, 411 (1981). The presiding official did not make

detailed findings on this issue. After reviewing the record

in its entirety, we conclude that the agency did not

establish a legitimate reason for the apparent disparity

in treatment between appellant and other agency employees

who committed similar offenses.

To show that the penalty of removal imposed on appellant

was not inconsistent with the penalties imposed in other

cases, see Douglas, 5 MSPB at 332, the agency cited the

cases of the two fire fighters who were removed for

disobeying orders. As already noted, fhese were not

the same as appellant's case. In addition, the agency

relied on a compilation of information designated Agency

Exhibit 1. This document is a summary of

certain disciplinary actions taken three to four years before

appellant was removed. (Tr. 107-16). Most of the entries

refer to removals for deliberate falsifications of travel

vouchers. One refers to a removal for falsification of a

doctor's statement. Three others refer to "removal from

position" (presumably demotions or reassignments), as opposed

to removal from employment, for falsification or

misrepresentation, thereby indicating that removal from

employment is not always the penalty for falsification.
— 8—

Indeed, one other entry on Agency Exhibit 1 refers to a oneday suspension imposed on someone for deliberat e

falsification. In no instance is any information regarding

the specifics of any offens e or the individual's past

disciplinary record noted. F6r these reasons trie document

lacks probative value and is insufficien t to rebut

appellant's disparate treatment allegations.

The agency did not attempt to show that appellant's

case was not actually comparable to any of the 57 cases upcn

which his disparate treatment claim was based. Nor did the

agency attempt to explain why lesser penalties were imposed

in so many apparently similar cases.6/ Of the 57 employees

who were allegedly treated more leniently than appellant,

three wer e removed just as he was. See Appellant's

Exhibits E7, Ell, E39. Factually, however, the cases of

thes e thre e individuals wer e not comparabl e to

appellant's.7/ The penalties imposed in the other 54 cases

6/The agency stipulated that the copies of decision

letters appellant introduced into evidence were authentic.

(Tr. 136). A question was raised as to the relevance of

disciplinary actions taken after appellant w^s removed, but

the agency's objection on this ground was overruled. (Tr.

141) . The parties were given an opportunity to submit

written closing arguments. Appellant did so, but the agency

did not.

7/Appellant

 fs Exhibit E7 pertains to an individual

who (according to the Notice of Proposed Removal the agency

issued, which was upheld in its entirety), was required to

support every absence with a doctor's statement, who was

AWOL two days rather than one, who falsified not only a

doctor's statement but also a letter from Consumer Credit

Counseling Service, and who had twice been suspended for

misconduct before the agency proposed removal. Appellant's

Exhibit Ell pertains to an individual who was AWOL "in excess

of ten days" (apparently almost continuously) and who

falsified a doctor's statement. Appellant's Exhibit E39

pertains to an individual who was AWOL for five days, who

failed to request leave according to established procedures

on three of those days, and who had been disciplined for

similar offenses on three prior occasions.
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ranged from a one-day suspension to a 20-day suspension.

While some of the cases may be distinguished from appellant's

on factual grounds, see, e.g., Appellant's Exhibits E4,

E33f J3/ others closely resemble his, see , e.g.,

Appellant's Exhibits E5, E16, E26. 9/ Read together,

Appellant's Exhibits E1-E57 reveal a tendency on the part

of the agency to suspend rather than remove employees who

commit minor AWOL and/or falsification offenses. "Perfect

consistency" is not required, see Douglas, 5 MSPB at

333, but the agency did not begin to explain why appellant

was disciplined more severely than so many other employees.

The agency's principal justification for removing

appellant was that the offense of falsification is extremely

serious, especially in light of appellant's duties as a fire

fighter. See Douglas, 5 MSPB at 332. (Throughout these

proceedings, the agency has stressed the falsification

charge, treating the AWOL charge as relatively trivial.)

The agency contends that the presiding official improperly

substituted his judgment for that of the agency when he

concluded that the offense of falsification did not warrant

removal under the circumstances of this case.

I/Appellant's Exhibit E4 pertains to** an individual

who was suspended for five days for allowing "marijuana and

paraphernalia" to be transported onto the base. Appellant's

Exhibit E33 pertains to an individual who was suspended for

one day for counterfeiting a parking permit.

I/Appellant's Exhibit E5 pertains to an individual

who was suspended for ten days for being AWOL one day and

submitting a falsified doctor's statement to justify that

absence. Appellant's Exhibit E16 pertains to an individual

who was suspended for 14 days for being AWOL for a number

of days, failing to request leave in accordance with

established procedures, and falsifying a doctor's statement.

Appellant's Exhibit E26 pertains to an individual who was

suspended for 14 days for being AWOL and falsifying a VA

form.
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Falsif ication will not invariably result in removcil;

the circumstances of each individual case must be taken 1/nto

account. Cade v. U.S. Postal Service, 8 MSPB 362, 363

(1981); Klein v. Department of Labor, 6 MSPB 249, 250

n.l (1981). The Board does not condone appellant's

falsification of a leave request form. This act, however,

was collateral to appellant's AWOL offense which, in turn,

both sides have viewed as minor. Moreover, while appellant

cannot evade responsibility for signing a form which

contained incorrect information, the seriousness of his

offense is tempered because—as the Court of Appeals pointed

out, 707 F.2d at 1412—his supervisors presented him with

a completed form to sign even though they knew his request

for sick leave was fraudulent. He did not take the

initiative in preparing and submitting the SF-71.

That appellant worked as a fire fighter rather than

in some other capacity makes no difference. All federal

employees are, of course, expected to be trustworthy and

to maintain high standards of integrity. See 5 U.S.C.

2301(b)(4). Chief Dunkin implied that a fire fighter whose

trustworthiness has been called into question in any way

must necessarily be removed, but never cogently explained

why, and we can discern no basis for such an approach to

discipline. Indeed, it would not be possible for the agency

to proceed in such a manner and still give meaningful

consideration to the requirements of APR 40-750 and

Douglas.

After independently reviewing the relevant penaltyselection factors in accordance with Douglas we conclude,

as did the presiding official, that the penalty of removal

was beyond the bounds of reasonableness in this case.

Several mitigating factors, which the agency ignored, are

present: Appellant's performance was satisfactory, he had

never had attendance problems before, the only past

disciplinary action to which he was ever subjected cannot
-Illegally be held against him, and there is a serious question

whether the penalty originally imposed upon him was

consistent with the penalties imposed in comparable cases.

The maximum reasonable penalty the agency could have imposed

for the sustained charges of unauthorized absence for one

d^y and falsification of a related leave request form was

a 45-day suspension.]^/ Accordingly, the initial decision

is hereby AFFIRMED as MODIFIED. The agency is ORDERED to

cancel the removal action and substitute in lieu thereof

a suspension of 45 days. The agency is also ORDERED to award

back pay and benefits ll/ in accordance with 5 CFR Section

550.805. This is the final decision of the Board in this

appeal. 5 C.F.R. 1201. 1.13 (c) .

The appellant is hereby notified of the right under

5 U.S.C. 7703 to seek judicial review of the Board's action

by filing a petition for review in the United States Court

of Appeal for the Federal Circuit, 717 Madison Place, N.W. ,

Washington, D.C. 20439. The petition for judicial review

must be received by the court no later than thirty (30) days

after the appellant's receipt of this order.

FOR THE BOARD:

2 IBM

. ,.=.

_10/The presiding official incorrectly held that a

45-day suspension "would be a reasonable penalty" (emphasis

added) without explicitly finding, pursuant to Davis, 8

MSPB 17, that it would be the maximum reasonable penalty

the agency could have imposed. To the extent that the

presiding official thus committed an error of law, the error

is rectified in this Opinion and Order.

11/See Robinson v. Department of the Army, MSPB

Docket No. SF07528310135, (June 12, 1984).