OUTLINE FOR WRITTEN REPLY TO PROPOSAL OF DISCIPLINE
PURPOSE: An employee against whom discipline or adverse action is proposed has a statutory right to present his/her defense in the form of both a written and oral reply. A well-written and researched reply is extremely important in preparing a thorough record for a case that may proceed to arbitration or MSPB.
A. Date of proposed action.
B. List charges.
C. State whether request for extension was granted.
D. State whether all requested information was received.
II. Statement of Facts
A. Background of employee.
1. Years of service, grade, duty post.
2. Disciplinary Record (if any) or any recognition.
3. Recent Supervisory Appraisal (if applicable)
4. Union Involvement (if applicable, to establish any anti-union animus.)
B. Sequence of events.
III. Response to charges.
A. Write detailed factual response to each charge.
B. Highlight facts in dispute (if applicable).
IV. Legal Arguments
A. Set forth regulatory or contract violations (if applicable).
B. Set forth affirmative defenses (if any).
C. Set forth arguments for mitigation (Douglas factors).
V. Conclusion and Remedy/Relief
A. Brief closing statement.
B. Request restoration (position, days, back pay, benefits).
Patricia T. Nighswander
National Border Patrol Council
3700 Albemarle St. N.W.
Washington, D.C. 20016
(202) 362‑9858 FAX July 23, 1993
On June 23, 1993, Border Patrol Agent Bruce Smith was issued a notice proposing a three day disciplinary suspension. The proposal consists of one charge: USE OF INSULTING, ABUSIVE OR OBSCENE LANGUAGE TO OR ABOUT OTHERS. The charge is supported by one specification involving an incident which occurred on December 29, 1992.
II. STATEMENT OF FACTS
Agent Smith entered on duty with the Border Patrol on September 21, 1987. He has an unblemished disciplinary record. He is held in high regard by his supervisor, who describes him
as an intelligent, highly motivated agent. (See Supervisor Johnson’s memo of January 3, 1993). His performance appraisals have been Fully Successful to Excellent. He has been a member of BORTAC since July 7, 1990.
On December 29, 1992, Agent Smith and Agent Joe Perez were assigned traffic observation on RR 334. Agent Smith was the driver; he was driving just below the speed limit. While traveling west on 334, a vehicle pulled up behind them, followed at a dangerously close distance and then proceeded to pass the Border Patrol vehicle, staying within the confines of the westbound lane, thus causing Agent Smith to swerve off the road to avoid an accident. Agent Smith immediately assumed that the driver of the other vehicle was either intoxicated, angry or in some kind of trouble. Accordingly, he activated the emergency lights and stopped the vehicle. The driver immediately exited his vehicle and approached Agent Smith in a confrontational manner. Because the driver (John B. Nixon, Jr.) had his hands in his pockets, Agent Smith thought he might have a gun and decided to pat him down. Words were exchanged. Agent Smith asked Nixon why he was driving so dangerously. Nixon refused to answer. Agent Smith then checked with the female passenger of the vehicle to see if she was alright. Having ascertained that Nixon was not intoxicated, Agent Smith did not detain him further. Before Nixon left he took note of Agent Smith’s vehicle number. Agent Smith then informed Nixon that if he had any question as to whether the stop was within the scope of his authority, he could bring such concerns to Supervisors Johnson or Jones at the Border Patrol office. That same evening, Agent Smith wrote a memo reporting this incident.
On December 30, 1992, Mr. Nixon went to the Border Patrol office and reported his complaint to PAIC John Jones. Nixon complained that the stop had violated his civil rights, but stated that the matter would be resolved if Agent Smith would apologize for having stopped him. Agent Smith, believing that he had good reason to make the stop, was not willing to apologize.
On January 13, 1993, Nixon wrote to Congressman J.J. Pickle and set forth in an affidavit his concerns with having been stopped by Agent Smith. Congressman Pickle forwarded Nixon’s correspondence to Mr. Steve Butler at the El Paso Office of the Inspector General.
Between February 12 and March 9 of 1993, an OIG investigation was conducted by Tim Roberts and Christopher Turner. Roberts and Turner interviewed Perez, Smith, Nixon, Betty Montgomery (Nixon’s girlfriend) and Nixon’s father. No sworn statements were taken.
On June 1, 1993, Perez and Smith were interviewed by OIG investigator Simon Lopez; sworn statements were taken. Nixon made a sworn statement to Lopez on June 9, 1993.
1. The Penalty Of A Three Day Suspension For Alleged Abusive Language Is Excessive.
First, it must be noted that Mr. Nixon’s complaint primarily focused on the stop. Nixon felt that his civil rights were violated ‑‑‑ he wanted Smith to apologize for that. Agent Smith is not charged with having made an improper stop. It is well known that stops involving reckless driving are frequently made by Border Patrol agents in this station and that they are not considered improper.
Both Smith and Perez reported that Nixon’s driving was dangerous and threatening. Smith had good reason to be concerned. When Nixon approached Smith he was aggressive and confrontational. Such an attitude exhibited by someone who is clearly in the wrong is provocative. Smith had good reason to be angry. Smith does not specifically recall whether he used the word asshole. If he did, he believes he may have said something along lines of why are you driving like an asshole? That may not have been the most artful way to pose such a question, but Nixon’s driving and behavior did not exactly inspire gentle courtesy.
Agent Smith is a good agent. He has never been the subject of complaints for abusive language in the past. Nor has he ever been counseled for exhibiting aggressive behavior or using improper language. A three day suspension based on an allegation made by a person who is clearly guilty of reckless and irresponsible driving is an excessive penalty.
Article 31 (F)(1) of the collective bargaining agreement requires that suspensions of 30 days or less will be taken only for just and sufficient cause and only for such reasons as will promote the efficiency of the service. We do not believe that the agency can meet its burden. Furthermore, the agency’s Administrative Manual 2235 requires the use of progressive discipline. This allegation is a first offense. The Administrative Manual also states that discipline is to be corrective, not punitive. A three day suspension is clearly punitive. If the agency perceives that Agent Smith’s behavior needs to be corrected, then clearly counseling him is the most appropriate action.
2. The Agency Has Violated Article 31(F)(3) Of The Collective Bargaining Agreement By Its Delay In Imposing Discipline.
Article 31(F)(3) states:
The Employer shall furnish employees with notices of proposed disciplinary actions at the earliest practicable date after the alleged offense has been committed and made known to the Employer. The parties recognize that certain investigations are beyond the administrative control of the Employer.
The Agency apparently conducted its own local investigation of this incident immediately after it happened and took no action. After the letter from Congressman Pickle was received an OIG investigation was conducted, but no statements were taken. Then, apparently recognizing that the absence of sworn statements was a problem, the agency reinvestigated the case in June of 1993. There were no new developments between February and June of 1993; nothing changed. In fact, the argument could be made that the agency had all of the information it needed to propose discipline in January of 1993. These investigations were not complicated nor were they beyond the administrative control of the Employer. Clearly there is a reason for this provision in the agreement. If disciplinary action is to be fair and effective, it must be taken swiftly.
We hope that the agency will give careful consideration to the issues raised in this reply and will reach a determination that no penalty is warranted.
FEOR Perspective ‑ July 1996
THE RISE AND FALL OF FIRM CHOICE
By Cynthia L. Field, Employee Relations Consultant
In Johnson v. Interior, EEOC 03940100 (3128/96), 96 FEOR 3123, the Equal Employment Commission (EEOC) eliminated the requirement for an agency to offer an employee a firm choice between treatment for alcoholism and removal. MSPB has adopted EEOC’s holding in this respect, in the case of Kimble v. Department of the Navy, SF0752950404‑1‑1 (6/11/96), 96 FMSR 5216, deferring to the Commission’s interpretation of discrimination law (the Rehabilitation Act of 1973, as amended). These decisions have ended differing opinions by the two administrative bodies of what a firm choice is, who is entitled to it, and when it should be given. It may be useful to look at the way firm choice originated, how it developed, and why the recent decisions came about.
OPM’s Development of The Concept of Firm Choice
Firm choice is a concept originally developed by OPM in 1980 under its authority to provide guidance for agencies in the Federal Personnel Manual (FPM) concerning appropriate prevention, treatment, and rehabilitation programs under the Drug Abuse and Alcohol Abuse Acts. It was developed as one method for getting an employee to admit performance and conduct problems caused by alcohol or drug abuse and enter treatment, not as a form of reasonable accommodation. The term was first found in FPM Supplement 792‑2, Alcoholism and Drug Abuse Programs (1980), as a recommendation that supervisors first observe and document specific instances of unacceptable performance, behavior, or attendance, then refer the employee for counseling, and finally:
If the employee refuses help, and performance continues to be unsatisfactory, [the supervisor should] provide a firm choice between accepting agency assistance through counseling or professional diagnosis of his or her problem, and cooperation in treatment if indicated, or accepting consequences provided for unacceptable performance.
Note that there was no requirement for firm choice, merely a recommendation that supervisors provide one, nor was firm choice to be automatically a choke between treatment and removal.
With the sunset of the FPM, firm choice is no longer described anywhere in OPM’s regulation or guidance, nor in any other general OPM policy requirements for agencies. Supplement 792‑2 is no longer in effect, because the material in it is not reflected in new regulations. Thus, there has been no written policy guidance on firm choice since the abolishment of the supplement, even though case law continued to proliferate.
Pre‑1990 Case Law on Firm Choice as a Form of Reasonable Accommodation
For several years after the issuance of FPM Supplement 792‑2, agencies used firm choice as one option for substance abusers who refused to get help for unacceptable performance or conduct. As has often been the case when the word should is used, the recommendation that supervisors should provide a firm choice was gradually interpreted by agencies to be a requirement for employees who might be alcoholics or drug abusers. However, EEOC, MSPB, and the courts did not set it as a required form of reasonable accommodation until the decision of the D.C. District Court in Whitlock v. Donovan, 598 F.Supp. 126 (D.D.C. 1984), 85 FEOR 5007, aff’d without opinion, 790 F.2d 964 (1986). In Whitlock, the District Court held that the provision of a firm choice was required under section 501 of the Rehabilitation Act of 1973, as amended, both as an affirmative obligation for assisting such employees overcome their handicap, and as a required reasonable accommodation under section 501 (b). The court held that the Department of Labor had not provided Mr. Whitlock with a firm choice. OPM, represented by the Department of Justice, challenged the court’s decision, arguing that the agency had given a firm choice, but that it was not required to so. However, in oral arguments before the U.S. Court of Appeals for the District of Columbia, a Justice attorney conceded that firm choice was mandatory, even though OPM’s language in FPM Supplement 792‑2 made it only recommended, or precatory. Finding that there was no difference between the parties on the legal issues on the case, and that the agency had not provided the required firm choice, the D.C. Circuit thereupon affirmed the district court’s decision.
Despite Whitlock, EEOC and MSPB did not require a firm choice until 1989, after the Fourth Circuit’s decision in Rodgers v. Lehman, 869 F.2d 253 (4th Cir. 1989), when EEOC issued several decisions holding that agencies had an affirmative obligation to assist alcoholic employees to overcome their disabilities before firing them for conduct or performance related to their alcoholism, with the agency having the burden of establishing that offering the firm choice would create an undue hardship. See, for example, Calton v. Marsh, Secretary of the Army, EEOC 03890037 (5/24/89), 89 FEOR 1118, in which the Commission differed with MSPB, finding that the agency had not shown that it would be undue hardship to give Mr. Calton a firm choice before separating him.
MSPB thereupon adopted EEOC’s interpretation and stated that, henceforth, it would require agencies to provide a firm choice to employees who were disabled by alcoholism. In Calton v. Department of the Army (414/90), 90 FMSR 5238, the Board also adopted the Commission’s conditional restoration policy, in which the agency was to offer reemployment pending proof that he has successfully completed his inpatient rehabilitation program, is continuing with treatment, and has continued to abstain from the use of drugs or alcohol. Determining that Mr. Calton had not completed rehabilitation, was not abstaining from alcohol, the agency did not restore him to his former position.
For several years after the decisions requiring a firm choice, third party case law on firm choice continued to allow considerable flexibility as to when and how to give one. A typical example is Robinson v. Frank, Postmaster General, EEOC 01890388 (5/8/90), 89 FEOR 7011:
In light of appellant’s repeated failure to complete a treatment program, combined with his chronic attendance problems and the agency’s failure to discipline him, the agency should have given him a firm choice between his entry into a counseling or rehabilitation program, or being terminated. Again, each time that appellant was referred to the agency’s PAR [Program for Alcoholic Recovery] or EAP program he should have been put on firm notice that if he refused to accept the referral or follow through with the program and if he continued to have performance problems, he would be subject to progressive discipline including termination.
At this time, these case law requirements applied to either alcoholics or drug abusers.
Passage of The Americans With Disabilities Act in 1990
On July 26, 1990, the Americans with Disabilities Act (ADA) amended the Rehabilitation Act to exclude Federal employees who currently engage in the illegal use of drugs from the definition of persons with a disability. Still covered under the Rehabilitation Act are individuals (a) who have completed a supervised drug rehabilitation program and are not engaging in the illegal use of drugs, (b) who are participating in such a program and not engaging in illegal drug use, or (c) who are erroneously perceived as participating in such use. EEOC first reflected this change in its decision in Thomas v. Brown, Secretary of Veterans Affairs, EEOC 03920076 (4/22/93), 93 FEOR 3216, holding also that persons who are disciplined for drug use or misconduct related to drug use should not be permitted to invoke the Act’s protection simply by showing ‘after‑the‑fact’ that they are rehabilitated. Various courts also noted the change in coverage under the Rehabilitation Act made by the ADA. MSPB continued to ignore the ADA changes, as interpreted by EEOC and the courts, and to require a firm choice for illegal drug users, notably in Harris v. Department of the Army and Yancy v. General Services Administration, discussed below.
MSPB’s Changes to its Holdings on Firm Choice
In 1993, MSPB issued several decisions that changed firm choice case law so far as the Board itself was concerned. The lead case, Harris v. Department of the Army (3/29/93), 93 FMSR 5099, was written by a majority of the Board, with a strong and lengthy dissent by Member Parks. The majority stated that it would for the first time specify what constituted a firm choice (in the majority’s opinion):
Accordingly, we hold that to satisfy the firm choice requirement, an agency must afford an affected employee an unequivocal choice between effective treatment of his condition and the initiation of removal procedures if the employee (1) chooses not to participate in a treatment program; (2) ceases to participate in the treatment program; (3) is discharged from the treatment program before completing it; (4) fails to adhere to the terms of the treatment program; or (5) engages in alcohol or drug‑related misconduct [emphasis added] or has alcohol or drug‑related performance deficiencies after completing a treatment program.
In Banks v. Department of the Navy (3/29/93), 93 FEOR 5099, the majority further held that disciplinary actions less than removal could be used as a form of reasonable accommodation of substance abusers only where a firm choice has been offered in addition to an opportunity for rehabilitation. This modified an earlier decision, Hougens v. Postal Service, (9/20/88), 88 FMSR 5345 on the use of demotions, suspensions, reprimands, etc., as reasonable accommodation of substance abusers, and cases applying Hougens.
At the time the Board issued its changed requirements for a firm choice, several of the Board’s holdings caused both confusion and criticism:
1. Some believed that the Board’s provision in Harris that an agency may separate an employee solely for his or her failure to start or complete a treatment program (even if the employee’s performance and conduct is totally acceptable) might require the agency to discriminate against an alcoholic employee by treating him or her differently than it would a nonalcoholic employee. Agencies hesitated to separate an employee merely for unsuccessful program participation. Ordinarily, a substance abuser who had not entered a rehabilitation program would also have unacceptable performance or conduct at this point, but occasionally such an employee could succeed on the job without treatment. Reilly v. Kemp, No. CIV‑89‑885E (W.D. N.Y., August 29, 1991) 92 FEOR 5007, reversed an agency’s removal action when it separated an employee for failing to keep doctor’s appointment, while acceptably performing at work. MSPB itself usually has held that there is no nexus between an agency’s removal action and conduct which would not affect an employee’s performance of his or her job duties.
2. Banks held that any lesser disciplinary action, (even a reprimand or two‑day suspension) would constitute reasonable accommodation of an alcoholic employee only when accompanied by a firm choice between successful rehabilitation and the initiation of removal. If an agency gave a firm choice early (as EAP experts recommend), Banks apparently limited the use of progressively more severe disciplinary actions for alcoholic employees who failed under Harris, even though many agency policies and bargaining agreements require progressive discipline if appropriate to the misconduct or leave deficiency.
3. Harris and Yancy v. General Services Administration, (415193), 93 FMSR 5107 stated the Board’s requirement that a firm choice be given for alcohol or drug‑related misconduct, even though the Americans with Disabilities Act of 1990 (ADA) had specifically excluded current illegal users of drugs from protection of the Rehabilitation Act. Although the Board finally acknowledged in Little v. U.S. Postal Service, 95 FMSR 5081 (2121/95), that such illegal users are not protected, Little did not specifically modify Harris and Yancy in this respect, as the Board’s decisions have usually done when it modifies its previous case law.
4. As the Board defined a firm choice, it seemed to mean that the agency could initiate a removal action if an employee failed a firm choice, even if the firm choice was given after an employee responded to a proposal to remove. There were situations where agencies did not know of an employee’s alcoholism until his or her response to a proposal to remove. Taken literally, Harris would have required cancellation of the proposal to remove and beginning again in order to provide a firm choice. While the Board subsequently issued Brock v. USDA, 94 FMSR 5524 (10/5/94), affirming the agency’s removal action when it gave a firm choice after a proposal to remove and did not begin the action again, Brock did not revise the Board’s requirement in Harris for initiation of a removal action as part of the firm choice.
Apparently because of these and other concerns, Board members and staff indicated that they were interested in formally reconsidering the holdings in Harris and Banks; however, they had not done so before EEOC issued Johnson v. Babbitt. (Note: EEOC had not discussed or applied the Board’s holdings in Harris or Banks in any of the cases it considered after those holdings were made.)
Effect of Changes to The Rehabilitation Act in 1992
While the ADA made no changes with respect to the Federal sector on the current use of alcohol as a disabling condition, the Rehabilitation Act Amendments of 1992, Pub. L. 102‑569, amended 29 U.S.C. 791 of the Rehabilitation Act by adding the following language:
The standards used to determine whether this section  has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under Title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and sections 501 through 504, and 510 of the ADA] (42 U.S.C. 12201‑12204 and 12210), as such sections relate to employment.
EEOC and Federal court decisions issued after that amendment indicted that ADA standards will now be applied to Federal employees’ complaints and appeals of discrimination covered by the Rehabilitation Act. See for example Robinson v. Runyon, EEOC No. 05940034, September 1, 1994, 96 FEOR 3195, and Biddle v. Rubin 4 AD Cases 1193 (D.C., W.D. lllinois, E.Div. 1995).
EEOC’s Decision in Johnson v. Babbitt
The 1992 amendments had a potential effect on Federal agencies’ treatment of employees who are disabled by alcoholism. Sect. 104(c)(4) of the ADA, now applicable to Federal employers, permits (although it does not require) an employer to hold an alcoholic employee to the same qualification standards for employment or performance and behavior on the job to which it holds other employees, even when the reason for such unsatisfactory conduct or performance is related to the alcoholism.
However, until Johnson v. Interior, EEOC 03940100 (3/28/96), 96 FEOR 3123, the EEOC had not considered the effect of the 1992 amendments on the reasonable accommodation of alcoholics, particularly the requirement for a firm choice. In Johnson, the agency had several years before proposed the employee’s removal for sleeping on duty, tardiness, and continued misconduct. Although the employee did not raise substance abuse, the agency mitigated the removal to a 45‑day suspension, stating that his conduct and behavior indicated that he had a problem with substance abuse, and warning him that if he was a substance abuser, he must consider the suspension decision as a formal warning to become rehabilitated or face removal. The employee entered a substance abuse program, and was subsequently allowed time off to participate in an in‑patient treatment program, being advised at that time that he must provide documentation of how long his stay would be in order to be eligible for advanced sick leave. Although he spent only nine‑days in the residential program, he led the agency to believe he was in the program for several weeks.
The agency then proposed his removal for absence without leave for the period when he had indicated he was still in the treatment program after he had dropped out, and for providing false information to a management official. It noted that he had been given leave some years earlier to participate in a residential substance abuse treatment program. The agency decided to remove the employee, considering several previous disciplinary actions for leave and other abuses. On appeal, the MSPB sustained the removal action, finding that the agency had given the employee a firm choice at the time it mitigated the earlier removal action to a 45‑day suspension. The employee then petitioned the EEOC, arguing that he had not been given a firm choice.
Finding that the employee was disabled by his alcoholism, that his alcoholism caused the attendance deficiencies, and that he was a qualified individual with a disability, the Commission next considered his argument that he was not given a firm choice. It stated its understanding that the doctrine of firm choice requires warning the alcoholic employee with performance or conduct problems that he will receive discipline, up to and including removal, if he does not enter into (or continue in) and follow through with a program that treats alcoholism.
The Commission then held that [F]ederal employers are no longer required to provide the reasonable accommodation of firm choice under section 401 of the Rehabilitation Act. because the Rehabilitation Act Amendments of 1992 changed the applicable standard. Citing Whitlock as the seminal firm choice case, EEOC pointed out that decisions by it and the courts which pre‑dated the 1992 amendments considered firm choice to be a form of reasonable accommodation required by section 501. It noted that while Whitlock cited to the affirmative obligation language of section 501 (see Whitlock, above), the decision held that this affirmative duty is only part of the reasonable accommodation requirement of section 501 (b). The Commission opined that the earlier decisions requiring firm choice as a form of reasonable accommodation are inconsistent with the ADA employment standards incorporated in section 501. In other words, agencies need not excuse the violations of uniformly applied conduct or job performance standards as a form of reasonable accommodation. EEOC noted that agencies may not unlawfully discriminate against alcoholic employees who commit misconduct by treating them differently from other, nonalcoholic, employees who had engaged in the same misconduct.
The Commission concluded:
In essence, the doctrine of firm choice has historically required federal employers to excuse the violation of otherwise‑uniformly applied job performance or conduct standards by giving the employee with alcoholism the firm choice of entering into and completing treatment, or receiving discipline, up to and including removal. We find that section 501, as amended by the Rehabilitation Act Amendments of 1992, no longer requires that a firm choice be provided.
It found that since the agency was not required to give the petitioner a firm choice before removing him for AWOL and giving false information to a management official, it did not discriminate against the petitioner by removing him.
In a footnote, the Commission pointed out that agencies may choose to provide a firm choice, in that they are permitted, but not required, to hold alcoholic employees to the same performance and conduct standards as other employees. In addition, a firm choice allows an opportunity for rehabilitation, consistent with the goals of the Alcohol Abuse Act.
MSPB’s Decision in Kimble v. Department of the Navy
On June 11, 1996, MSPB issued a final decision on the case of Kimble v. Department of the Navy, Docket No. SF07529504044‑1 96 FMSR 5216, denying the appellants petition for review of the initial decision that had dismissed his appeal for lack of jurisdiction. The Board found that he had agreed to a settlement waiving his appeal rights, and the agency had not coerced him into entering the agreement even though it knew it had not provided the firm choice required for alcoholic employees who engage in misconduct. Although it lacked jurisdiction over the discrimination claim, the Board reopened the appeal to consider the claim that the agency’s failure to provide a firm choice reflected on the validity of the settlement’s waiver term.
The Board first pointed out that its requirement for a firm choice came about only after EEOC, having, adopted the doctrine of firm choice in its mixed‑case decisions, reversed and remanded the case of Calton v. Department of the Army back to the Board, finding that the agency had failed to provide the required firm choice before removing the appellant. It next noted the fact that the ADA had changed the substantive law concerning alcoholism, a change that became applicable to Federal employees with passage of the Rehabilitation Act Amendments of 1992 and was first reflected in EEOC’s decision in Johnson v. Babbitt.
The Board pointed out that in this case, it would not be bound by the EEOC’s decision in another case (Johnson) since the current appeal was not from a nonconcurring EEOC decision. Nonetheless, it determined that agreement with EEOC’s holding would accord with previous case law that the Board should defer to an EEOC decision if it would be bound by it if it had been issued in the same case. Reviewing Johnson, the Board concluded that it did not constitute an incorrect interpretation of civil service law, rule, regulation, or policy directives, and that EEOC’s decision to disagree with MSPB’s interpretation o discrimination law after the ADA as continuing to require a firm choice had a reasonable basis. Therefore, it adopted the EEOC’s ruling for this and later cases, and overruled Harris, Banks, and Calton, as well as any other Board decisions that could be interpreted to require imposition of a firm choice following the effective date of the Rehabilitation Act Amendments of 1992. Thus, even if the agency failed to offer a firm choice, the appellants claim of coerced settlement failed, and the Board accordingly dismissed the appeal for lack of jurisdiction.
Effects of Johnson and Kimble
It appears that the requirement for providing a firm choice to employees whose alcoholism has caused their poor performance or conduct and who are otherwise qualified individuals with a disability has been effectively overturned by the two decisions, even though there have been no rulings by the courts or other third parties. This is particularly true since there is no longer any basis in OPM policy for the firm choice doctrine.
However, even though agencies are no longer required to provide firm choice to meet their reasonable accommodation obligations under the Rehabilitation Act, the Board has held in Douglas v. Veterans Administration, 81 FMSR 7037, that they must consider such factors as whether the employee was warned that his misconduct was unacceptable, the employee’s potential for rehabilitation, and whether an alternative penalty would effectively deal with the misconduct or inefficient performance charged against the employee. (See Douglas factors numbers 9, 10, and 12.) In addition, if agencies currently require a firm choice under their own regulations or the terms of a bargaining agreement, they will be bound to follow these requirements, with failure to do so being considered under the harmful procedural error rule (5 U.S.C. 7701 (c)(2)). Finally, as the EEOC pointed out, it would be prohibited discrimination to treat alcoholic employees more severely than other employees for the same performance or conduct deficiencies.
Even though firm choice is no longer required, agencies are not prohibited from using this tool. In fact, EEOC specifically pointed out that a firm choice offers a chance for rehabilitation consistent with the goals of the Alcohol Abuse Act. In addition, agencies have used the technique successfully not only for alcoholics, but for drug addicts, or those with mental illnesses who might benefit from being given the choice between accepting the need for treatment and maintaining acceptable performance and conduct, or otherwise receiving discipline, up to and including removal. Thus, firm choice continues to be an effective tool in attempting to salvage employees with alcoholism or other problems that may respond to rehabilitation or medical treatment.
SAMPLE AGENCY FIRM CHOICE
LAST CHANCE/ABEYANCE AGREEMENT (LCA)
Concerning the proposed removal of _________ dated ____________, the parties to this action, Immigration and Naturalization Service and _________, agree to the following:
1. I acknowledge that Border Patrol Chief __________, by letter dated _____________, notified me of his proposal to remove me from Federal Service for my drug and alcohol abuse. I understand the decision will be held in abeyance for a period of one (1) year pending my compliance with this agreement. Compliance with this agreement must be met for the period of in-patient rehabilitation, plus one (1) year follow-up.
2. I understand that by offering me this Last Chance Agreement, the Service is seeking to accommodate my alcoholism and drug dependency by offering me a firm choice between removal and rehabilitation.
3. My proposed removal from the rolls of Immigration and Naturalization Service is based upon the charges in the proposal. A decision on the proposed removal will be effected should I: (1) choose not to participate in a treatment program, (2) cease to participate in the treatment program, (3) be discharged from the treatment program before completing it, (4) fail to adhere to the terms of the treatment program, or (5) engage in alcohol or drug-related performance deficiencies after completing a treatment program for a period of one (1) year.
4. I understand that Immigration and Naturalization Service, as a result of its law enforcement responsibilities, must require high standards of employee conduct.
5. I agree to participate in a supervised drug and alcohol agency-approved rehabilitation program and required aftercare program, including attendance at scheduled meetings and appointments. Attendance reports, as well as progress reports, will be provided to my supervisor, as required. I will sign a medical release for the Service to receive periodic progress and attendance reports and monitor my rehabilitation.
I will submit to drug testing without notice on a periodic basis throughout the one (1) year pendency of this agreement.
6. I expect my supervisors to observe my performance and conduct closely.
7. I agree to meet from time to time with my supervisors to discuss the status of my treatment and recovery.
8. I agree to abide by the terms of this Last Chance/Abeyance Agreement and agree to abstain from alcohol and drug use.
9. I understand the Agency’s acceptance of this LCA is for the purpose of my rehabilitation and by the acceptance hereof, the Agency in no way condones alcohol or drug abuse by employees.
10. I understand that my failure to abide by the terms of this LCA and/or continued alcohol or drug abuse will result in a decision on the proposed removal which is being held in abeyance.
11. I enter into this LCA freely and voluntarily without duress or coercion fully understanding my right to seek counsel if I choose.
12. I agree to waive all appeal, grievance, and/or EEO complaint rights based on the instant proposed action. I also agree to waive all appeal and/or grievance rights based on any removal arising from my failure to comply with the terms of this agreement.
I have read and understand this abeyance agreement as stated in Items 1 through 12 above and fully agree to comply with its terms.
CREDIBILITY ANALYSIS C HILLEN FACTORS
It is appropriate at this time to subject the key witnesses to a thorough examination and analysis against the above referenced Hillen factors. For ease of reference we shall take each of the factors in the order in which they appear in Hillen and challenge the credibility of the key witnesses in accordance with these factors.
(1) The witness’s opportunity and capacity to observe the event or act in question;
In Hillen, supra, the Board elaborated on the requirements of this factor and held:
Personal knowledge of the event or act at issue is an essential qualification of a witness, and the requisite personal knowledge is established by evaluation of the witness’s opportunity, as to place, time, proximity, and similar factors, to observe the event or act in issue.
As we have already noted, the investigator failed to gather and set forth sufficient evidence as to place, time and proximity of various witnesses. It is virtually impossible to determine from many of the statements as to who could have heard or seen what. We have already discussed this problem in relation to specific witnesses and specific charges and need not further burden the record here.
(2) the witnesses’s character;
Clearly the key witness relied upon so heavily by the agency is Joe Garcia. The investigator was deeply impressed by his sincerity. This is not the first time Garcia has been involved as the provocateur in a physical confrontation. We submit for your consideration in evaluating Garcia’s character the Police Department Offense Report, a Class C Misdemeanor filed against him on February 23, 1992. (ATTACHMENT__).
In Hillen, supra, the Board defined the use of character evidence as follows:
Character evidence may be used for impeachment of a witness on the theory that certain characteristics render that person more prone to testify untruthfully. This form of impeaching evidence may be established by prior misconduct or reputation.
Notwithstanding the gullibility of the investigator, Joe Garcia is not Mr. Nice Guy.
(3) any prior inconsistent statement by the witness;
Again we must focus on the statements made by Garcia. As we have already pointed out in our response to the first charge, Garcia’s April 7, 1992 statement to the investigator in Exhibit ___ is not consistent with his affidavit.
(4) a witness’s bias, or lack of bias;
In Hillen, supra, the Board further defines bias as follows:
Bias rests on the assumptions that certain relationships and circumstances impair the impartiality of a witness and that a witness who is not impartial may consciously or unconsciously shade his or her testimony for or against one of the other witnesses or parties.
To suggest that Garcia’s statements are biased and not impartial is an understatement. We firmly believe that Joe Garcia was strongly motivated to shade the truth — or even to outright lie. Consider this. Joe Garcia is in his final semester at __________ University. He has already been involved in one brush with the law resulting in a court record. He had, on the afternoon of April 4, 1992 physically assaulted a federal officer. Clearly he heard Agent __________ tell Ramon Vega that he was going to file charges against him. (See Vega Affidavit, page 2, lines 18-20). Garcia did not want to face felony charges during his last year in college. He had every reason to rearrange the facts and shift the entire blame onto Agent __________. His statement to __________ that he did not want to cause any trouble for Agent _________ totally lacks credibility. He wanted to cause trouble for Agent _________ to deflect any problems from himself.
Furthermore, the statements of Garcia’s friends so heavily relied upon by the investigator can hardly be considered impartial. These statements were all taken after Garcia’s. It is not possible to believe that they did not get together to discuss what needed to be said. The similarities in the statements are not coincidental. These statements are biased because of their relationship with Garcia.
(5) the contradiction of the witness’s version of events by other evidence;
We have already pointed out the most obvious contradictions in the various statements and we will, during our oral presentation go into further detail.
(6) the inherent improbability of the witness’s version of events;
For the reasons set forth under number (4) above we assert that Garcia’s version of events is inherently improbable.
(7) the witness’s demeanor.
We cannot, of course, at this time present any evidence to you which would support our assertion that the demeanor of Garcia and his friends will throw into question their statements in the record. If this case goes to hearing, you may rest assured that an Administrative Judge will be carefully observing and evaluating their demeanor.
As you are well aware, the agency must prove by preponderant evidence that the alleged misconduct actually occurred. In order to meet this burden the agency will have to rely totally on witnesses who are clearly not disinterested, whose accounts are inconsistent with each other
and whose credibility is highly questionable. The only disinterested witness is Romulo Vega, who is not socially connected to either Garcia or Agent _________. The investigator chose to totally ignore his statement.
APPLICATION OF DOUGLAS FACTORS
In addition to proving that Agent _________ intentionally engaged in the cited acts of misconduct and that such misconduct adversely affects the agency’s mission, the agency must then exercise responsible judgement in determining whether any disciplinary action is warranted. We submit that the penalty of removal in this case is arbitrary and capricious, is motivated by animus of certain individuals towards Agent _________ and constitutes an abuse of discretion.
In the lead case involving penalty determination, the Board has set forth twelve factors that are appropriate for consideration by the agency in reaching its decision on the appropriateness of the penalty. (Douglas v. Veterans Administration, 5 MSPB 313, 1981). We will go through these factors and set forth what we believe must be considered in this case.
1. the nature and seriousness of the offense, and the relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical, or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
We are not, as noted above, diminishing the importance of the agency’s firearms policy; nor are we minimizing the safety hazard posed by firecrackers. We do, however, assert that these offenses were not intentional and were inadvertent. They were definitely not committed maliciously or for gain. Nor were they frequently repeated.
2. the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
Agent _________ is not a supervisor and his position is no more prominent than that of any other Border Patrol Agent. He does have contacts with the public, but there is no evidence that he has ever, as a Border Patrol Agent, dealt unprofessionally with the public in the past, nor is there any indication that he would do so in the future.
3. the employee’s past disciplinary record;
The agency has relied on the August 19, 1992 one day suspension for alleged falsification during an official investigation. It must be noted that the original proposal was for a three day suspension. Although it was considered by the agency to have been proven, it was mitigated. There must have been a reason for mitigation. We firmly believe that it was because the evidence did not support the charge.
Next the agency, although acknowledging that the incidents were beyond the reckoning period, has considered as aggravating factors the previous written reprimand for AWOL and the 1987 suspension for misuse of a government vehicle.
We would hasten to point out that these previous incidents are totally dissimilar to the current charges and cannot be used to enhance a subsequent penalty. The Board and the Court of Appeals for the Federal Circuit have expressed concern about dissimilarity of current charges and past offenses. In Thiesen v. VA, 31 MSPR 277 (1986) the Board considered the problem of an employee removed for a minor incident, characterized as verbal patient abuse, who had a prior suspension for what was labeled sexually-related misconduct. The Board reduced the removal to a thirty day suspension because it concluded that the record failed to demonstrate any similarity between the misconduct involved in the prior charge and the charge in the action appealed.
The Court of Appeals for the Federal Circuit again expressed its concern about dissimilarity of current charges and past offenses in Stephens v. Dept. of Air Force (Fed. Cir. 1988 nonprecedential No. 88-3020). The court held:
in the second argument, Stephens asserts that the prior charges are dissimilar to the present charges of insubordination and should not have been used to justify the penalty of removal. See Jackson v. VA 768 F.2d 1325, 1332 (Fed. Cir. 1985) (past record not a substantial consideration affecting magnitude of penalty when past disciplinary actions unrelated to charge sustained). Specifically, the Administrative Judge found that the present offense is not the first time (Stephens) has had problems dealing with supervisory authority. Consequently, the AJ found it obvious that the prior actions did not have a rehabilitative effect on (Stephens). In affirming, the Board also found that Stephens lacked rehabilitative potential as shown by his prior disciplinary record.
These findings are not supported by substantial evidence in the record. Both prior disciplinary actions relate to poor workmanship, not insubordination, although the second incident was described as a failure to comply with supervisory instructions. With respect to that incident, after receiving instruction from his supervisor on the proper use of a template, Stephens made incorrect hinge cut-outs on a landing gear door. In substance, that mistake bears no relationship to insubordination. Accordingly, there is no pattern of conduct which supports a finding that the prior discipline had no rehabilitative effect on Stephens’ conduct or showed he lacked rehabilitative potential with respect to the misconduct here.
4. the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
Agent _________’s performance appraisals have always been at least Fully Successful. He has eight and one-half years of service. He gets along with fellow workers and is considered to be dependable.
5. the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties;
There is no evidence that these incidents have any effect on Agent __________’s ability to continue to perform at a satisfactory level.
6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;
The agency has provided proposal and decision letters of similar charges of misconduct. These consist of two official reprimands, one oral admonishment and one three day suspension. The incidents covered are 1) verbally threatening a fellow employee with physical violence; 2) assaulting and using profane and abusive language to a local high school principal; 3) threatening a fellow agent with physical violence; and 4) carrying a sidearm in a courtroom. Clearly, the penalty imposed against Agent _________ is hardly consistent with that imposed in any of these cases.
7. consistency of the penalty with any applicable agency table of penalties;
The agency Table of Penalties for the charges in question consists of a broad range of penalties from reprimand to removal for a first offense. Clearly this is to provide considerable latitude depending on the severity of the offense in each category. Removal is not the mandatory penalty except for a third offense of disorderly conduct.
8. the notoriety of the offense or its impact upon the reputation of the agency;
These incidents were not media events. There was no notoriety and, therefore, no impact on the reputation of the agency.
9. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
Agent _________ is familiar with the firearms policy and does not deny that he is aware of the requirement to carry only a service authorized weapon. He did not, as noted earlier, intentionally violate this policy.
10. potential for the employee’s rehabilitation;
Agent _________ has sincerely expressed his remorse for these incidents. He now gives you every assurance that they will not be repeated.
11. mitigating circumstances surrounding the offense such as unusual job tensions, personality conflicts, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter;
It is our firm belief that there are some serious personality conflicts, unusual job tensions, harassment, bad faith, malice and provocation which must be considered. These matters will be discussed in detail at the oral reply.
12. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
The removal of an employee from his position is industrial capital punishment. These incidents do not warrant removal. Contrary to the beliefs held by some individuals, Agent _________ loves his job and wants to keep it.
EFFICIENCY OF THE SERVICE
Second, the agency must prove that the penalty of removal promotes the efficiency of the service. In our written reply to the proposed indefinite suspension we cited Moten v. United States Postal Service, 42 MSPR 282 (1989) for the proposition that there are three recognized methods by which the agency may show a nexus between off-duty misconduct and the efficiency of the service. Since we are now dealing with the underlying misconduct (as opposed to the indefinite suspension) we will repeat these methods and set forth our arguments on each.
In Moten, supra, the Board held that (1) a rebuttable presumption of nexus may arise in certain egregious circumstances; (2) the agency may show, by a preponderance of evidence that the misconduct at issue has adversely affected the employee’s or co-workers’ job performance; and (3) it may show, by a preponderance of the evidence, that the misconduct interfered with or adversely affected the agency’s mission.
As we stated in our written reply to the proposed indefinite suspension, we do not believe that the alleged misconduct in this case rises to the level of what the Merit Systems Protection Board generally considers egregious circumstances such as to permit the presumption of nexus. Examples of circumstances that have been considered egregious by the Board are the off duty shooting by a supervisor of collections of an individual who had beaten the appellant’s daughter (Faint v. U.S. Postal Service, 22 MSPR 495 (1984) ; a clerk-typist indicted for rape and false imprisonment (Johnson v. Department of Health and Human Services, 22 MSPR 521 (1984); the shooting by a GM-13 Labor-Management Relations Specialist of his fiancee (Backus v. OPM, 22 MSPR 457 (1984); a postal service employee’s sexual abuse of his daughter’s fourteen year old friend (Graham v. United States Postal Service, 49 MSPR 364 (7/24/91).
In our written reply to the proposal of indefinite suspension we submitted twenty affidavits from Agent _________’s co-workers (including one supervisor) all of which attested to their belief that Agent __________ was an excellent co-worker and that the misconduct at issue had not adversely affected their job performance. We would now like to add to the record sworn statements of employees in support of Agent _________’s continued employment. (See Attachment ___).
AFFIDAVIT OF __________
STATE OF __________
COUNTY OF ___________
BEFORE ME, the undersigned official, on this day personally appeared __________, who first being duly sworn according to law upon his oath, deposed and said:
My name is __________. I am a Border Patrol Agent. I am over eighteen years of age and I am fully competent to make this affidavit.
I have known Agent __________ for _____ years. I have worked with him [include specific details regarding experience with Agent __________] I can honestly say that I would welcome the opportunity to be his partner. I am fully aware of the details of the incident involving criminal charges and I would not be the slightest bit apprehensive about working with him in circumstances which might lead to an on the job shooting incident.
To the best of my knowledge, and in my experience, the Border Patrol has suffered no adverse consequences in its dealings with local and federal law enforcement agencies as a result of this incident.
Further affiant sayeth not.
SUBSCRIBED AND SWORN TO BEFORE ME on this _______ day of _______, 19___, to certify which witness my hand and official seal.
Notary Public in and for __________ County, State of ___________.
My commission expires:
Printed name of Notary Public
FLRR Perspective C September 1995
INDEFINITE SUSPENSIONS MAY BE MORE COSTLY TO IMPOSE
A federal employer has the right to place an employee on immediate, indefinite suspension if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed. 5 U.S.C. 7513 (b) (1). [This is an exception to the law requiring that a federal employer give 30 days’ notice before taking an adverse action against an employee.] Many a federal employee has been suspended without pay based solely on an indictment for criminal offenses, and, if the employee was later acquitted of the criminal charges, the agency could reinstate him with back pay limited to wages and benefits accrued from the time of acquittal. A recent Federal Circuit case, however, may now make the federal employer liable for back pay starting from the first day of the indefinite suspension‑generally a much earlier date.
Edward Richardson v. U.S. Customs Service, 47 F.3d 415 (Fed. Cir. 1995), was an appeal of an arbitration award that denied back pay for the time period between the suspension date and the date of acquittal by a jury. The petitioners were two U.S. Customs Inspectors who roomed together in Miami and who were indefinitely suspended after being indicted for assaulting a federal officer‑a mailman who was allegedly threatened with a gun after being mistaken for an intruder at their apartment. After their jury trial and acquittal, the two were reinstated with back pay retroactive only to the date of the verdict, and they grieved.
The arbitrator who ultimately ruled on the grievance interpreted the law of the Federal Circuit as precluding an award of back pay for the interim period between the suspension, which was based on the criminal indictment, and the subsequent acquittal of criminal charges.
On appeal, the Federal Circuit noted that its predecessor, the Court of Claims, had initially laid down a rule that appeared to deny back pay for the interim period in all indefinite suspension cases. The 1976 opinion in Jankowitz v. United States, 533 F.2d 538, held that the agency did not commit an unjustified or unwarranted personnel action within the meaning of the Back Pay Act when it indefinitely suspended a Federal Housing Authority employee after he was indicted for bribery. The fact that the federal employer had followed applicable procedural recommendations and safeguards, id., shielded the agency from liability for back pay for the period between suspension and the employee’s subsequent acquittal on criminal charges.
The D.C. Circuit had reached the opposite conclusion: that back pay was always payable for that interim period. In Brown v. Department of Justice, 715 F.2d 652 (D.C. Cir. 1983), the court decided that an indefinite suspension based solely on an indictment constituted a conditional adverse action. In order to become ultimately justified, the suspension had to ripen into a termination action based on misconduct provable by the agency. Id. The petitioners in Richardson read this holding to mean that back pay was always payable for the time of indefinite suspension when the indictment resulted in acquittal.
The Federal Circuit in Richardson ultimately rejected the absolutism of both the Court of Claims and D.C. Circuit pronouncements. It found in another Claims Court case, Summers v. United States, 648 F.2d 1324 (1981), a basis for carving out a middle way. The Summers court decided that the agency had not abused its discretion when it awarded the petitioner back pay for the interim period of his indefinite suspension, even though the agency was not obliged to do so.
The Federal Circuit rejected the Brown analysis that an indefinite suspension was a conditional adverse action. It also refused to interpret Jankowitz to mean that procedural regularity shielded the agency from liability for back pay during the interim period. Rather, reading Jankowitz and Summers together, the Federal Circuit stated the following rule: when an employee who has been suspended under the summary suspension provision is acquitted and subsequently reinstated, the agency is neither required to nor precluded from making the reinstatement with back pay retroactive to the date of the suspension. That decision is a matter for the agency, in the first instance, to make, based on all the facts and circumstances. Richardson, supra. The Federal Circuit determined that the agency’s decision was subject to judicial review under the Administrative Procedure Act, 5 U.S.C. 701. Such agency action may not be unlawfully withheld or unreasonably delayed, and may not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. 706. The Federal Circuit noted that a proper forum for testing the agency decision would be the Court of Federal Claims under a Tucker Act suit based on the Back Pay Act, or, in some cases, a proper forum might be arbitration under the terms of a collective bargaining agreement.
The court vacated the arbitrator’s ruling and remanded the case to him for further proceedings consistent with its decision.
Elaine Kaplan, the Deputy General Counsel of the National Treasury Employees Union, who argued the Richardson case before the Federal Circuit, said this was a good decision for the union. Before, she said, an agency could just withhold back pay. Now it has to give a good rationale. This is hard to do if it can’t take an action based on the alleged criminal misconduct. On remand, she said, the agency settled the case by agreeing to grant the employees back pay retroactive to the starting date of the suspension. Kaplan was also aware of another case‑involving the Internal Revenue Service‑which had been held in abeyance and which was settled by a similar award of back pay after the decision in Richardson came down.
Steve Flig, the NTEU representative who handled the case before the arbitrator, believed that Richardson was a very important case because it dealt with federal employees who were suspended without due process. The agency, he said, may take action [in a case such as this] based on a preponderance of the evidence, but it took no administrative action. Nobody found that they [the grievants] did anything at all! Yet, as a result of the summary suspension, the grievants lost a year’s pay, overtime, and leave benefits. Flig said that the agency had not yet finished calculating the back pay award, but that the two grievants were owed $20,000 in overtime alone. He would only be quoted as saying that the agency owed a substantial sum, but would not rule out an award in six figures.
PROPOSAL OF INDEFINITE SUSPENSION
On behalf of Border Patrol Agent __________, I am taking this opportunity to respond in writing to your proposal of October 14, 1993 to indefinitely suspend him from duty and pay, pending the disposition of the criminal charges against him.
We recognize that case law supports the agency’s right to impose an indefinite suspension against an employee based on an indictment for alleged job-related criminal misconduct for which a sentence of imprisonment can be imposed. (Brown v. Department of Justice, 715 F.2d 662 (D.C. Cir. 1983) and Martin v. Customs Service, 12 MSPR 12 (1982). We would point out, however, that the indictment in this case (as distinguished from the above cited cases) does not reflect that the charges relate directly to Agent __________ work as a Border Patrol Agent. The agency, therefore, bears the burden of showing by a preponderance of evidence that a nexus exists between the alleged criminal misconduct and the efficiency of the service.
In Moten v. U.S. Postal Service, 42 MSPR 282 (1989), the Board on page 287:
recognized three methods by which an agency may show a nexus between off-duty misconduct and the efficiency of the service: (1) A rebuttable presumption of nexus may arise in certain egregious circumstances; (2) the agency may show, by a preponderance of evidence that the misconduct at issue has adversely affected the employee’s or coworkers’ job performance; and (3) it may show, by a preponderance of the evidence, that the misconduct interfered with or adversely affected the agency’s mission.
We do not believe that the alleged misconduct reflected in the indictment rises to the level of what the Board generally considers egregious circumstances such as to permit the presumption of nexus. (See e.g., Moten, supra). Further, we do not believe that the agency will be able to meet its burden to show that the mission of the agency was adversely affected by the alleged misconduct.
We would also point out that consideration of the Douglas factors by the agency is appropriate in these circumstances. The Board held in Douglas that in determining whether a penalty is reasonable, one must look to the specific, individual considerations, rather than acting automatically on the basis of generalizations unrelated to the individual situation.
Although we cannot present a specific defense to any of the allegations of criminal misconduct for fear of prejudicing Agent __________’s case, we would assert in general terms that the alleged offense was not related to Agency duties.
Clearly there are other alternatives to suspension in this case. Agent __________, although he would prefer to be reinstated to his Border Patrol position, would be most willing to accept another assignment during the pendency of his criminal case. In a sector the size of __________, surely there are many alternative positions to which he could be temporarily assigned.
Senior District Judge James F. Gordon filed a dissenting opinion in the above cited Brown case which we feel is worthy of note, bearing in mind, of course, that the charges in Brown involved job-related conduct. Judge Gordon stated:
But the majority seems incorrect to me when they assert that the only alternative to allowing suspension of a job-related indictment is to require the agency to base suspension on the employee’s allegedly unlawful conduct and to prove independently that the conduct actually occurred. There are still other alternatives which are far less drastic than an indefinite suspension. The employee can be reassigned to another agency job that is less sensitive. Or, if such a job cannot be found, the employee can be placed on administrative leave which would allow the person to continue being paid while the person’s job status is in limbo.
I believe these alternatives should be obligatory because indefinite suspensions based solely on indictments are so dangerous. Indictments may be based on probable cause that a person committed a crime, but often as with appellant Charest, they are not borne out. In the meantime, employees like these appellants may be cut off financially, without any realistic chance of being hired by another employer, and without any assurance that the indictment will not go on for years. Perhaps worst of all, the employees may be thrown into this limbo because of unreliable or politically motivated evidence which the employees may not know or be able to discover and refute.
Based on the foregoing, we would urge consideration of a reassignment for Agent _________.
CHALLENGE TO AGENCY RELIANCE ON HEARSAY
We must also point out that the record relied upon by the agency in support of those charges which Agent __________ challenges consists largely of hearsay. There are approximately eight documents contained in the police report which appear to constitute the essence of the agency’s evidence. Six of these documents are unsigned, unsworn supplementary reports which allegedly reflect the contents of various individuals’ complaints against Agent _________. The complainants did not sign them. They are simply the individual officer’s version of what they were allegedly told by any of these persons. There are three affidavits, two of which are signed and sworn. One of the affidavits relates to matters peripheral to the charges. The affidavits of the other two individuals, although purportedly describing the same sequence of events, are not consistent with each other. The OIG Investigator, although acknowledging some of the inconsistencies, obviously relied on these documents to reach his conclusions. There is no evidence in the record that he sought to corroborate any of these statements by contacting any of the witnesses or the local police department. Where are the statements from the various other persons who, according to the police reports, allegedly witnessed thee events? It does not escape one’s notice that all of the persons who made statements have something to gain. (See Attachment ___).
We recognize that hearsay evidence is admissible in administrative proceedings, but the value or weight of hearsay depends upon the circumstances of each case. The Board’s leading hearsay decision is Borninkhof v. Department of Justice, 5 MSPB 150 (1981). This case set forth the following factors which must be considered by an administrative judge who evaluates hearsay:
(1) the availability as witnesses of persons with firsthand knowledge;
(2) whether statements of the out of court declarants were signed and whether anyone witnessed the signing;
(3) agency’s explanation for failing to obtain signed or sworn statements;
(4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made;
(5) consistency of declarants’ accounts and other information in the case, internal consistency, and their consistency with each other;
(6) whether corroboration for statements can otherwise be found in the agency record;
(7) absence of contradictory evidence;
(8) credibility of declarant when he made the statement attributed to him.
It is our opinion that based on the circumstances of this case, the agency would not succeed in meeting the requirements of these factors even if all of the persons involved in this matter were to testify. Most of the witnesses did not sign sworn statements, but rather gave their reports to the police; the witnesses are certainly not disinterested witnesses; the declarants accounts are inconsistent with each other; the credibility of the witnesses is questionable.
All of these charges relate to off duty conduct. In addition to proving that Agent_____ actually engaged in the alleged misconduct, the agency must show that a nexus exists between such conduct and the agency’s mission. The lead nexus case decided by the Board is Merritt v. Department of Justice, 6 MSPB 493 (1981). The Board decided the nexus issue in relation to the efficiency of the service standard, 5 U.S.C. ‘ 7513, and the prohibited personnel practice provision, 5 U.S.C. ‘ 2302 (b) (10), proscribing a personnel action that does not adversely affect the performance of the employee or the performance of other employees. 5 U.S.C. ‘ 2302 (b) (10) provides:
Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority:discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others;
At page 509 of Merritt, the Board held:
A nexus determination must be based on evidence linking the employee’s off-duty misconduct with the efficiency of the service, or in certain egregious circumstances, on a presumption of nexus which may arise from the nature and gravity of the misconduct. In the latter situation, the presumption may be overcome by evidence showing the absence of adverse effect on service efficiency, in which case the agency may no longer rely solely on the presumption but must present evidence to carry its burden of nexus. The quantity and quality of the evidence which the agency need present in that circumstance would clearly depend upon the nature and gravity of the particular misconduct as well as upon the strength of the showing made by the appellant in overcoming the otherwise applicable presumption.
As with all factual questions in proceedings brought under 5 U.S.C. Chapter 75, the facts relied upon to establish a connection between the off-duty misconduct and the efficiency of the service must be proved by a preponderance of the evidence. Whether the facts, as proven, including those established through any applicable presumption, logically support the conclusion that the agency discipline promotes the efficiency of the service is a question of law which must be decided in the affirmative before the action can be sustained.
There are no egregious circumstances present in this case. The agency cannot, therefore, avail itself of the nexus presumption, but must rather present evidence to carry its burden of proving nexus. The agency has presented no evidence to even suggest that a nexus exists between Agent __________’s alleged misconduct and the mission of the service. The investigator’s reference to having personally contacted various local law enforcement officials to ascertain from them whether, in their opinion, Agent __________’s alleged misconduct was out of line, does not in any constitute evidence. None of those persons were eyewitnesses to anything that occurred on the soccer field or at the Border Patrol Station on April 4, 1992 were not there. Furthermore, we assert that such an inquiry on the part of the investigator was highly improper and further indicative of his outrageous bias. Agent __________ spoke with the Justice of the Peace and a police officer, and obtained from each of them a voluntary statement appended as ATTACHMENT ___.
FLRR Perspective‑ November 1995
THE IMPACT OF THE FAMILY MEDICAL LEAVE ACT
By Patricia Grzywacz, Esq.
The Family and Medical Leave Act (FMLA) was intended to allow employees to take up to 12 weeks of unpaid leave to care for a new baby or certain sick family members. Since the FMLA went into effect in 1993, very few cases have been decided involving alleged violations of the FMLA in the federal sector. This may be due to the federal government’s already generous leave policies. This shortage of disputes involving federal sector employees may also be due to cases making their way through the various dispute resolution procedures. The Federal Labor Relations Board (FLRA) as of October 1, 1995 has only heard three cases dealing with the FMLA, 2 of the cases being related. Only one arbitration case has involved the FMLA. This article will discuss the FMLA and the cases that have involved it.
The FMLA allows eligible employees up to twelve workweeks of leave during any 12‑month period for: (1) the birth and care of a child; (2) the placement of a child with the employee for adoption or foster care; (3) to care for the employee’s spouse, dependent child or parent, if such spouse, child or parent has a serious health condition; and (4) because the employee has a serious health condition that makes the employee unable to perform the functions of their position, 29 USC 2612(a)(1). The Act defines serious health condition as an illness, injury, impairment or physical or mental condition that involves: (1) inpatient care in a hospital, hospice or residential medical care facility; or (2) continuing treatment by a health care provider, 29 USC 2611(11). In order for an employee to be eligible, the employee must have been employed for at least 12 months by the employer from whom leave is requested, and must have worked at least 1,250 hours with the employer during the previous 12‑month period, 29 USC 2611(2)(A). Excluded from the definition of employee are: (1) any Federal officer or employee covered under subchapter V of 5 USC 63; and (2) any employee who is employed at a worksite at which the employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that work site is less than 50, 29 USC 2611 (2)(B). An employer is defined in 29 USC 2611(4) as any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year and includes: (1) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; (2) any successor in interest of an employer; and (3) any public agency as defined in 29 USC 203(x). These provisions indicate which employees qualify to take a leave of absence under the FMLA.
The first case the FLRA decided involving the FMLA was AFGE, Local 3184 and Social Security Administration, Pasadena, Texas, 50 FLRA 449 (1995). The case involved several grievances filed by the union concerning the manner in which management verified a medical certificate submitted by the grievant to substantiate a sick leave request and management’s placement of the grievant on sick leave restrictions twice. The arbitrator found for the agency. On appeal to the FLRA, the union argued the award violated the FMLA. Since the union failed to specify the manner in which the arbitrator’s award violated the FMLA, and the Authority could find no apparent violation of the FMLA, the exception was denied. The Authority did not provide any specific reasons as to why there was no violation of the FMLA. Every one of the union’s exceptions was ultimately denied as the Authority upheld the arbitrator’s decision.
The second case to be decided by the FLRA involving the FMLA was a negotiability case and the union’s request for reconsideration of the decision. In AFGE, Council of Marine Corps Locals, Council 240 and Department of the Navy, U.S. Marine Corps, Washington, D.C., 50 FLRA 637 (1995), the FLRA had to determine the negotiability of a union proposal to extend the FMLA. The union wanted to extend the FMLA to include situations where an employee sought to care for a medical emergency of a dependent child, regardless of age, or of an in‑law or grandparent of the employee. The agency disapproved the provision, arguing it directly interfered with management’s right to assign work under 5 USC 7106(a)(2)(B) and would deprive management of its discretionary authority to approve and disapprove leave. The Authority found the proposal nonnegotiable. The FLRA rejected the union’s argument that the proposal was an appropriate arrangement. The Authority applied the balance of harms test in finding the proposal was not an appropriate arrangement. Since the proposal established an absolute requirement that the agency grant extended periods of leave without pay in certain circumstances, and as a result, would remove the agency’s discretion to deny leave based on workload considerations, the proposal placed a heavy burden on management to grant an extensive amount of leave without regard to workload or any other considerations. Although the proposal clearly benefited employees, the Authority found the burden placed on management far outweighed the benefit and therefore the proposal was not a appropriate arrangement and was nonnegotiable. In AFGE, Council of Marine Corps Locals, Council 240 and Department of the Navy, U.S. Marine Corps, Washington, D.C., 51 FLRA 49 (1995), the union filed a request for reconsideration of the decision in 50 FLRA 637 (1995). The union argued the Authority misapplied and misinterpreted the provisions of the FMLA in erroneously stating in a footnote that civil service employees may be required to substitute accrued leave for any part of the 1 2‑week leave period, and disputed the Authority’s finding that management would be required to grant an extended amount of leave without regard to workload or other considerations. The Authority agreed with the union that it had made a misstatement in the original decision and used this dispute as a way to correct the mistake, but determined the mistake was not enough to establish extraordinary circumstances which would justify reconsideration. The FLRA rejected the union’s second argument, finding the union had relied on the wrong section of the FMLA in reaching its conclusion that management could deny leave. The Authority found the FMLA does require the agency to grant an eligible employee up to 12 weeks of leave at any time. Since this argument also failed to establish extraordinary circumstances, the union’s request for reconsideration was denied.
The final case involving federal employees and the FMLA was an arbitration case, Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Marion, IL and AFGE, Local 2343, 95 FLRR 2‑1048. The case involved an employee who wanted to use sick leave to cover some of his absences related to his father’s hospitalization and death. The employee used all of his annual leave and then requested he be allowed to use sick leave instead of advanced annual leave. The warden refused to allow the use of sick leave, instead crediting the time off to advanced annual leave. The union filed a grievance on the employee’s behalf, arguing both agency past practice and the FMLA allowed employees to substitute sick leave in these circumstances. The Arbitrator rejected the union’s arguments, finding nothing in the FMLA which would require an employer to substitute sick leave for unpaid leave. The FMLA does allow for substitution of sick leave for unpaid leave if the employer normally offers paid leave for that purpose. Since the OPM regulations in effect at the time of the grievance specifically forbade the use of sick leave to care for ill family members except when a family member has a contagious disease, the grievance was denied.
The cases cited above are the only cases to have been decided that involve federal sector employees and the FMLA. Because of the controversy surrounding the adoption of the FMLA two years ago, it would seem likely that more cases will arise. There may be cases currently making their way through the lower levels of the various dispute resolution systems which may make their way to arbitration, the FLRA or even the courts. It will be interesting to see what happens over the next several years.
FMSR Perspective ‑ December 1997
HOW THE FMLA FITS INTO THE BOARD’S CONSIDERATION
OF A LEAVE‑RELATED CHARGE SUCH AS AWOL
By Linda G. Dunham, Esq.
A Botanist with the Department of the Interior requested leave after a serious depression. The agency denied her request and removed her for being absent without leave (AWOL) and for medical inability to perform her duties. The Merit Systems Protection Board found, however, that the employee was entitled to leave under the Family and Medical Leave Act of 1993 (FMLA).
In another recent case, a Border Patrol Agent with the Department of Justice, Immigration and Naturalization Service, was suspended for AWOL after he left to care for his seriously ill mother. The Board reversed the agency’s action, however, finding that the agency interfered with the employee’s rights under the FMLA.
Where does me FMLA fit into the Board’s consideration of a leave‑related charge such as AWOL? The Board addressed this issue in the above decisions, Ellshoff v. Department of the Interior [97 FMSR 5348] and Gross v. Department of Justice [97 FMSR 5465]. These decisions are discussed below.
Ellshoff v. Department of the Interior
In Ellshoff, the employee had requested annual leave due to a depression for which she received extensive treatment and hospitalization. The agency, which had previously placed her on leave restriction status due to her excessive absences, denied her request and charged her with AWOL. The employee presented medical documentation recommending leave from work and, when she returned to work over two months later, submitted the requisite forms to request leave, including leave under the FMLA. The agency, however, denied the request and removed her for AWOL, and for medical inability to perform her duties. With respect to the AWOL charge, the agency argued, inter alia, that the employee’s initial FMLA notice was deficient because she failed to explicitly invoke the FMLA, which she invoked only after her return to work. On appeal, the administrative judge (AJ) found that the agency had failed to prove either of its charges.
In affirming the AJ’s decision that the agency failed to prove its charge of AWOL, the Board provided a detailed analysis of why the employee was entitled to leave under the FMLA. After first finding that the AJ had correctly accepted the employee’s FMLA claim for consideration, the Board turned to the burden of proof issue. The Board reconsidered, and modified its decision in Ramey v. U.S. Postal Service [96 FMSR 5184].
In Ramey, the Board had held that a claim of entitlement to FMLA leave, with respect to a leave‑related charge, should be treated as a defense under 5 USC 7701(c)(2)(C), over which the appellant would have the burden of proof. In Ellshoff, however, the Board found that there was no basis for treating the FMLA and its implementing regulations differently from any other leave‑related statute and regulations which may apply to a leave‑related charge. The Board found that, where the facts either specifically raised by the appellant or otherwise shown by the record evidence, implicate the FMLA relative to a leave‑related charge, the Board will consider and apply the FMLA without shifting the burden of proof to the appellant. In those circumstances, the agency now has the burden of proving that it properly denied FMLA leave in charging the employee with AWOL.
The Board did state that it was not suggesting that the agency should have the burden of proving the employee’s nonentitlement to FMLA leave in all cases where the FMLA potentially could be implicated, only when the employee has raised nonfrivolous factual allegations or the agency’s evidence or allegations otherwise show that FMLA‑qualifying leave was involved.
Relying on the 1993 interim OPM regulations, the Board then found that the employee was a covered employee under the FMLA, that the absence in question occurred after the effective date of the FMLA, and that the absence lasted less than the maximum limit under the FMLA. Because the employee had received inpatient care in a hospital for her depression, the Board found her depression to be a serious health condition. The Board also found that the medical evidence showed that the employee was unable to perform functions of her position during the absence in question.
The Board then turned to the FMLA’s notice requirement, discussing that the FMLA specifies the employee’s obligation to provide notice to the agency when the necessity for leave is foreseeable but appeared to be silent when the need for leave was unforeseeable. The Board reviewed OPM’s interim regulations which provided, with respect to unforeseeable absences, that the employee shall provide notice within a reasonable period of time appropriate to the circumstances and that, if the need for leave is not foreseeable and the employee is unable due to circumstances beyond his or her control to provide notice of his or her need for leave, the leave may not be delayed or denied. The regulations also provided that notice may be given by an employee’s personal representative (e.g., a family member or other responsible party). 5 CFR 630.1206(c). Since the employee’s doctor had provided advance notice to the agency of her need for leave due to her disabling depression and subsequently kept the agency apprised of the progress of her condition until she returned to work, and considering the nonspecific notice standard applicable for unforeseeable absences and the fact the employee was suffering from a medically documented, severe psychiatric condition, the Board found that the employee provided timely notice.
The agency argued that the employee’s initial notice was deficient because she failed to explicitly invoke the FMLA, which she invoked only after returning to work. The Board disagreed, however, concurring with the finding in Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir. 1995). The Board stated that, in Manuel, the court found there was nothing in the FMLA or its legislative history to warrant requiring the employee to explicitly invoke the FMLA in requesting FMLA‑qualifying leave. The Board discussed that, although the court in Manuel was considering Title I of the FMLA, applicable to private‑sector and Postal employees, the notice provisions under Title I and Title II were identical in material respects and Manuel, therefore, constituted persuasive authority on this issue.
Finally, the Board addressed the FMLA medical documentation requirements and discussed that the FMLA allows an agency to request in writing that the employee provide written medical certification in a timely manner. 5 USC 6383(a). In this case, the agency requested such certification in a letter but did not specify a deadline for the employee to submit the certification. The employee’s doctor communicated with the agency regarding her condition subsequent to the agency’s letter, but the employee did not submit the medical certification until her return to work.
The Board found that the employee’s submission of the medical certification upon her return to work was not untimely considering the circumstances: 1) the agency’s letter did not set a deadline; 2) the FMLA and implementing regulations did not set a specific time limit for the submission of medical certification; 3) the employee’s doctor periodically communicated with the agency regarding her condition; and 4) the employee was suffering from a medically documented, severe psychiatric condition during the relevant time. The Board also found to be sufficient the substance of the doctor’s report, which described the history and progress of the employee’s depression, when and how it became incapacitating, how it was treated, and the duration of the incapacity.
Although the agency argued that the doctor’s report did not contain all of the information the agency requested in its letter, the Board found the FMLA’s medical certification requirements to be much less stringent than those contained in the agency’s leave restriction letter. The fact that the doctor’s report did not satisfy the agency’s requirements did not warrant denial of FMLA leave. The Board stated that the FMLA provides that a medical certification shall be sufficient if it satisfies the minimum requirements under 5 USC 6383(b). If the agency has reason to doubt the validity of the certification provided, the onus shifts to the agency to obtain at its own expense a second medical opinion and then, if necessary, a third, and final, opinion. 5 USC 6383(c),(d). The Board concluded that, since the employee submitted medical certification that satisfied the minimum FMLA requirements, and the agency made no attempt to obtain any further medical opinion, it could not deny her FMLA leave based on any alleged deficiencies in her medical certification. Accordingly, for all of the reasons discussed above, the Board concurred in the AJ’s determination that the agency failed to prove its charge of AWOL.
Gross v. Department of Justice
In this case, the employee had submitted in advance a request for annual leave from Dec. 21 to Dec. 31, 1995. The request was approved, but on Dec. 18 or 19, the employee was informed that, because the continuing resolution under which the agency was operating had expired, all previously approved leave was canceled. By memorandum dated Dec. 22, the agency officially notified employees that, because the continuing resolution under which it was operating had expired and another continuing resolution had not been enacted, it had no funding as of midnight on Dec. 15, 1995, and it was imposing a furlough. The agency stated that it was canceling leave because leave could not be granted for a nonworkday. During the furlough, the employee’s position was designated excepted and he was required to report for duty.
On Dec. 23, the employee telephoned his supervisor regarding his mother, who had suffered a heart attack and whose condition had taken a turn for the worse, and he agreed to submit a memorandum explaining his situation. Later that day, the employee went to see his supervisor and, although the employee did not have his memorandum ready at that time, the supervisor received it on Dec. 24. The memorandum stated, in part, that the employee wished to renew his leave and be placed on furlough because he found it absolutely necessary to visit his mother, who had been stricken by congestive heart failure.
The employee left on Dec. 25 to visit his mother, and the agency placed him in an AWOL status for five calendar days during his absence. The agency subsequently suspended the employee for 20 days based on a charge of failure to comply with the agency’s leave‑request policy. The employee asserted that the agency violated the FMLA (codified at 5 USC 6381‑87) by improperly denying him leave to care for an ill family member. The AJ affirmed the agency’s action, finding that the agency properly placed me employee in an AWOL status because he failed to follow acceptable leave procedures and that the employee was not entitled to leave under the FMLA because, at the time of his leave request, the agency was operating under a furlough in which the employee’s position was designated excepted.
The Board first found that the employee’s family medical emergency situation was covered by the FMLA. The Board discussed that, under the FMLA, an eligible employee of a covered employer is entitled to unpaid leave, or paid leave, if earned, for a period of 12 weeks in any 12‑month period because of the birth of a child or the placement of a child for adoption or foster care, or because the employee is needed to care for a covered family member, including a parent with a serious health condition, or because the employee’s own serious health condition renders him unable to perform his job. 5 USC 6382(a)(1). A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves ‑ (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider. 5 USC 6381(5). The Board reiterated its finding in Ellshoff that the agency bears the burden of proving that it properly denied FMLA leave in taking an AWOL‑based action against an employee who is eligible for leave under the FMLA. The Board stated that here it was undisputed that the employee was eligible under the FMLA, and the Board found that the employee had established that his mother had a serious health condition.
The Board reviewed OPM’s applicable interim regulations concerning the FMLA notice requirements, 5 CFR 630.1206(a), (c), and (e), noting that, since this cause of action arose, OPM had issued final FMLA regulations effective Jan. 6., 1997. See 61 Fed. Reg. 64,441 (1996) (to be codified at 5 CFR Parts 630 and 890). The Board restated its holding in Ellshoff that an employee is not required to explicitly invoke the A in requesting covered leave. Since the agency had not disputed the employee’s allegation that he was needed to care for his mother or disputed the urgency or unforeseeability of his Dec. 24 leave request for this purpose, and the agency had not required the employee to submit medical certification regarding his mother’s condition, the Board found that his actions of phoning his supervisor, visiting him, and leaving a signed memorandum, as agreed, stating that he was need to care for his seriously ill mother, were sufficient to satisfy the notice requirements of the FMLA and to invoke entitlement to leave under it even though the employee did not explicitly invoke it.
The Board next found that the employee was entitled to be placed on leave without pay (LWOP) under the FMLA. The Board noted that the record demonstrated that, notwithstanding the furlough and the resulting cancellation of all leave, the agency had the discretion to grant excepted employees paid leave. It logically followed that the agency also had the discretion to grant them LWOP because such a grant did not require the agency to make or authorize an expenditure or obligation. As the Board noted in Ellshoff, absent a specific statutory or regulatory right to LWOP, an employee is not entitled to it as a matter of right, and the grant of LWOP is a matter committed to an agency’s administrative discretion. Nevertheless, where disciplinary action results from an agency’s denial of LWOP, the Board will review the circumstances to determine if the denial was reasonable. The Board found that the employee’s request to be placed on furlough was tantamount to a request for emergency medical LWOP under the FMLA and was sufficient to place the agency on notice that the employee was invoking the leave provisions of the FMLA. Thus, the agency’s failure to grant the employee LWOP was unreasonable, and the agency’s denial of LWOP violated the provisions of the FMLA.
Citing Ramey, the Board stated that, if an agency bases an adverse action on its interference with an employee’s rights under the FMLA, the adverse action is a violation of law and cannot be sustained. By failing to grant the employee LWOP to care for his seriously ill mother, and then placing him in AWOL status and suspending him, the agency interfered with his rights under the FMLA, and the agency’s action could not be sustained.
When dealing with FMLA requests, or denying an employee’s request for LWOP on the basis of medical reasons, agencies should consider the above decisions. An employee need not explicitly invoke the FMLA in requesting covered leave. Agencies should carefully review the FMLA’s notice requirements before denying LWOP when an employee returns to work after a medical problem, or that of a family member, and requests FMLA leave. Furthermore, where the facts either specifically raised by the employee or otherwise shown by the record evidence implicate the FMLA relative to a leave‑related charge, the agency now bears the burden of proving its compliance with the FMLA as part of its overall burden of proving the AWOL charge.
TITLE 5, UNITED STATES CODE
GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III ‑ EMPLOYEES
SUBPART E ‑ ATTENDANCE AND LEAVE
CHAPTER 63 ‑ LEAVE
SUBCHAPTER V ‑ FAMILY AND MEDICAL LEAVE
For the purpose of this subchapterC
(1) the term employee means and individual who
(A) is an employee, as defined by section 6301(2), including any individual employed in a position referred to in clause (v) or (ix) of section 6301(2), but excluding any individual employed by the government of the District of Columbia, any individual employed on a temporary or intermittent basis, and any employee of the General Accounting Office or the Library of Congress; and
(B) has completed at least 12 months of service as an employee (within the meaning of subparagraph (A);
(2) the term health care provider meansC
(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; and
(B) any other person determined by the Director of the Office of Personnel Management to be capable of providing health care services;
(3) the term parent means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter;
(4) the term reduced leave schedule means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee;
(5) the term serious health condition means an illness, injury, impairment, or physical or mental condition that involvesC
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider; and
(6) the term son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who isC
(A) under 18 years of age; or
(B) 18 years of age or older and incapable of selfcare because of a mental or physical disability.
(Pub. L. 103‑3, Feb. 5, 1993, 107 Stat. 19; Pub. L. 104‑1, Jan. 23, 1995,
109 Stat. 9.)
6382. Leave requirement
(a) (1) Subject to section 6383, an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12‑month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s position.
(2) The entitlement to leave under subparagraph (A) or (B) of paragraph (1) based on the birth or placement of a son or daughter shall expire at the end of the 12‑month period beginning on the date of such birth or placement.
(b) (1) Leave under subparagraph (A) or (B) of subsection (a)(1) shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employing agency of the employee agree otherwise. Subject to paragraph (2), subsection (e)(2), and section 6383(b)(5), leave under subparagraph (C) or (D) of subsection (a)(1) may be taken intermittently or on a reduced leave schedule when medically necessary. In the case of an employee who takes leave intermittently or on a reduced leave schedule pursuant to this paragraph, any hours of leave so taken by such employee shall be subtracted form the total amount f leave remaining available to such employee under subsection (a), for purposes of the 12‑month period involved, on an hour‑for‑ hour basis.
(2) If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) or (D) of subsection (a)(1), that is foreseeable based on planned medical treatment, the employing agency may require such employee to transfer temporarily to an available alternative position offered by the employing agency for which the employee is qualified and thatC
(A) has equivalent pay and benefits; and
(B) better accommodates recurring periods of leave than the regular employment position of the employee.
(c) Except as provided in subsection (d), leave granted under subsection (a) shall be leave without pay.
(d) An employee may elect to substitute for leave under subparagraph (A), (B), (C), or (D) of subsection (a)(1) any of the employee’s accrued or accumulated annual or sick leave under subchapter I for any part of the 12‑week period of leave under such subsection, except that nothing in this subchapter shall require an employing agency to provide paid sick leave in any situation in which such employing agency would not normally provide any such paid leave.
(e) (1) In any case in which the necessity for leave under subparagraph (A) or (B) of subsection (a)(1) is foreseeable based on an expected birth or placement, the employee shall provide the employing agency with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(2) In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) is foreseeable based on planned medial treatment, the employeeC
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employing agency, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and
(B) shall provide the employing agency with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(Pub. L. 103‑3, Feb. 5, 1993, 107 Stat. 20.)
(a) An employing agency may require that a request for leave under subparagraph (C) or (D) of section 6382(a)(1) be supported by certification issued by the health care provider of the employee or of the son, daughter, spouse, or parent of the employee, as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employing agency.
(b) A certification provided under subsection (a) shall be sufficient if it statesC
(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition;
(4) (A) for purposes of leave under section 6382(a)(1)(C), a statement that the employee is needed to care for the son, daughter, spouse, or parent, and an estimate of the amount of time that such employee is needed to care for such son, daughter, spouse, or parent; and
(B) for purposes of leave under section 6382(a)(1)(D), a statement that the employee is unable to perform the functions of the position of the employee;
(5) in the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment.
(c) (1) In any case in which the employing agency has reason to doubt the validity of the certification provided under subsection (a) for leave under subparagraph (C) or (D)of section 6382(a)(1), the employing agency may require, at the expense of the agency, that the employee obtain the opinion of a second health care provider designated or approved by the employing agency concerning any information certified under subsection (b) for such leave.
(2) Any health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employing agency.
(d) (1) In any case in which the second opinion described in subsection (c) differs from the original certification provided under subsection (a), the employing agency may require, at the expense of the agency, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employing agency and the employee concerning the information certified under subsection (b).
(2) The opinion of the third health care provider concerning the information certified under subsection (b) shall be considered to be final and shall be binding on the employing agency and the employee.
(e) The employing agency may require, at the expense of the agency, that the employee obtain subsequent recertifications on a reasonable basis.
(Pub. L. 103‑3, Feb. 5, 1993, 107 Stat. 21.)
6384. Employment and benefits protection
(a) Any employee who takes leave under section 6382 for the intended purpose of the leave shall be entitled, upon return from such leaveC
(1) to be restored by the employing agency to the position held by the employee when the leave commenced; or
(2) to be restored to an equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment.
(b) The taking of leave under section 6382 shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.
(c) Except as otherwise provided by or under law, nothing in this section shall be construed to entitle any restored employee toC
(1) the accrual of any employment benefits during any period of leave; or
(2) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.
(d) As a condition to restoration under subsection (a) for an employee who takes leave under section 6382 (a)(1)(D), the employing agency may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work.
(e) Nothing in this section shall be construe to prohibit an employing agency from requiring an employee on leave under section 6382 to report periodically to the employing agency on the status and intention of the employee to return to work.
(Pub. L. 103‑3, Feb. 5, 1993, 107 Stat. 22.)
6385. Prohibition of coercion
(a) An employee shall not directly or indirectly intimidate threaten, or coerce, or attempt to intimidate, threaten, or coerce any other employee for the purpose of interfering with the exercise of any rights which such other employee may have under this subchapter.
(b) For the purpose of this sectionC
(1) the term intimidate, threaten, or coerce includes promising to confer or conferring any benefit (such as appointment, promotion, or compensation), or taking or threatening to take any reprisal (such as deprivation of appointment, promotion, or compensation); and
(2) the term employee means any employee, as defined by section 2105.
(Pub. L. 103‑3, Feb. 5, 1993, 107 Stat. 22.)
6386. Health insurance
An employee enrolled in a health benefits plan under chapter 89 who is placed in a leave status under section 6382 may elect to continue the health benefits enrollment of the employee while in such leave status and arrange to pay currently into the Employees Health Benefits Fund (described in section 8909), the appropriate employee contributions.
(Pub. L. 103‑3, Feb. 5, 1993, 107 Stat. 23.)
The Office of Personnel Management shall prescribe regulations necessary for the administration of this subchapter. The regulations prescribed under this subchapter shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary of Labor to carry out title I of the Family and Medical Leave Act of 1993.
(Pub. L. 103‑3, Feb. 5, 1993, 107 Stat. 23.)
* Mr. Celmer is co‑author of the Federal Arbitration Advocate’s Handbook and of the 1992, 1993, and 1994 Federal Labor Relations Desk Books and has written scores of articles on federal sector labor and personnel law. He currently lives in West Palm Beach, FL, where he edits Russia and Commonwealth Business Law Report.