Zie Kone v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ZIE KONE, DOCKET NUMBERS
Appellant, PH-0752-13-0217-I-3
PH-0752-13-0413-I-2
v.
DEPARTMENT OF THE NAVY,
Agency. DATE: February 27, 2015
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Phillip G. Steck, Albany, New York, for the appellant.
Richard Dale, Esquire, Newport, Rhode Island, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review and the agency has filed a
cross-petition for review of the initial decision, which affirmed both the
appellant’s 30-day suspension for absence without leave (AWOL) and lack of
candor and his removal on a single sustained charge of disrespectful conduct. For
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the reasons discussed below, we GRANT the petition for review, DENY the
cross-petition for review, and MODIFY the initial decision in order to REVERSE
the 30-day suspension and to substitute a 30-day suspension for the removal.
Except as expressly MODIFIED by this Final Order, the initial decision is the
Board’s final decision in these appeals.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 This consolidated appeal concerns two separate adverse actions taken
against the appellant, a Senior Research Scientist in the Advanced Concepts
Division of the Sensors and SONAR Department of the Naval Undersea Warfare
Center in Newport, Rhode Island. In the first action, the agency proposed to
suspend the appellant for 30 days based on charges of: (1) AWOL and failure to
follow proper procedures for requesting leave on three specified dates; and
(2) lack of candor regarding the appellant’s whereabouts on one of those dates.
MSPB Docket No. PH-0752-13-0217-I-1, Initial Appeal File (0217-I-1 IAF),
Tab 4 at 43-47. The agency sustained two of the three specifications of AWOL
under the first charge, declined to sustain the second charge, and sustained the
penalty. Id. at 28-31. In the second action, the agency removed the appellant on
three sustained charges: (1) two specifications of AWOL; (2) four specifications
of providing false/misleading information; and (3) a single specification of
disrespectful conduct towards his supervisor. MSPB Docket No. PH-0752-13-
0413-I-1, Initial Appeal File, Tab 1 at 10-21.
¶3 In a single initial decision, the administrative judge sustained both of the
agency’s actions. MSPB Docket No. PH-0752-13-0413-I-2, Initial Appeal File,
Tab 2, Initial Decision (ID). Regarding the 30-day suspension, the administrative
judge found that the agency proved only one of the two remaining specifications
of AWOL and failure to follow proper procedures for requesting leave, involving
the appellant’s absence on September 5, 2012, but she sustained the charge based
on that single specification. ID at 4-7. Regarding the appellant’s removal, the
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administrative judge declined to sustain either of the AWOL and providing
false/misleading information charges, but she sustained the charge of
disrespectful conduct. ID at 7-12. Regarding both actions, the administrative
judge determined that the agency had not violated the appellant’s rights under the
Family and Medical Leave Act of 1993 (FMLA) because she found that the
agency had not imposed on him requirements for taking FMLA leave that were
more onerous than those required by the FMLA. ID at 12-13. The administrative
judge rejected the appellant’s affirmative defense of retaliation for engaging in
protected equal employment opportunity (EEO) activity, finding that his
misconduct outweighed any motive that the agency officials, who she found were
aware of the appellant’s EEO activity, might have had to retaliate against him for
engaging in that activity. ID at 16-18. The administrative judge also found that
the appellant’s general assertion that the agency violated its own regulations
concerning core hours, credit hours, and leave requirements was insufficient to
establish his affirmative defense of harmful procedural error. ID at 18-19.
Regarding the sustained misconduct, the administrative judge found that the
agency established nexus between both actions and the efficiency of the service.
ID at 14-15. Lastly, the administrative judge found that the 30-day suspension
and removal were both “reasonable penalties based on the seriousness of the
AWOL offense and the appellant’s disrespectful conduct.” ID at 19-21.
¶4 The appellant filed a timely petition for review, the agency filed a
cross-petition for review, and the parties both responded to each other’s
submission. Petition for Review (PFR) File, Tabs 1, 3, 5. As described in the
following analysis, we reverse the 30-day suspension because the record reflects
that the appellant requested leave for his September 5, 2012 absence within a
reasonable period of time appropriate to the circumstances involved, in keeping
with the pertinent regulation, 5 C.F.R. § 630.1208(d), as well as with his
supervisor’s recent past practice. Regarding the removal action, we agree with
the administrative judge that the agency established only the disrespectful
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conduct charge, but we MODIFY the initial decision to substitute a 30-day
suspension because the Board has consistently held that removal is not an
appropriate penalty for a single, first instance of such misconduct.
The suspension action
¶5 The appellant argues in his petition for review that the agency approved him
for intermittent FMLA leave, specifically covering the dates that the agency
charged him with AWOL, including the only specified date for which the
administrative judge sustained the agency’s AWOL charge, September 5, 2012.
PFR File, Tab 1 at 18; see MSPB Docket No. PH-0752-13-0217-I-2, Initial
Appeal File (0217-I-2 IAF), Tab 24 at 31-34, 73. The appellant testified that he
left the office that morning due to debilitating stomach cramps, making it to his
car with the help of some of his colleagues and then driving far enough to get off
post, where he parked until his cramping subsided. Hearing Transcript (HT)
at 584-89. He further testified that he then drove the short distance remaining to
his home, where he went straight into a dark room he uses when he has a strong
migraine and collapsed. Id. at 589.
¶6 The appellant argues in his petition for review that he subsequently
provided notice of his need to use his intermittent FMLA leave on an emergency
basis in a reasonable amount of time appropriate to the circumstances. PFR File
at 18-19. The agency maintains on review that the appellant was AWOL because
he failed to request and receive leave approval before departing the office on
September 5, as required by the agency’s leave instruction. PFR File, Tab 3
at 11-14; see 0217-I-2 IAF, Tab 17 at 33. On this point, the agency maintains
that, because the appellant was able to drive himself home and to call his
daughter, he was therefore able to give notice before he left the office that
morning and, because he did not do so, he was AWOL. MSPB Docket No. PH-
0752-13-0217-I-3, Initial Appeal File (0217-I-3 IAF), Tab 3 at 20-21, 24.
5
¶7 Regarding this specification, the administrative judge found that the
appellant left the office at 8:30 a.m. on September 5, and did not return that day.
ID at 5. Citing the testimony of the appellant’s supervisor, the administrative
judge further found that the appellant had personally reported to his supervisor on
September 7, that he left the office early on September 5, due to immediate health
issues. 2 ID at 5; HT at 157. Additionally, the documentary record indicates that
the appellant requested leave for September 5, via the agency’s time and
attendance system, but his supervisor denied the request on September 7, because
the appellant sought to use advance credit hours. 3 0217-I-2 IAF, Tab 24 at 25.
Thus, the record reflects that the appellant requested leave for his September 5
absence within 2 days. Nevertheless, the administrative judge sustained the
specification, finding that the appellant was absent on September 5, and that he
failed to properly request leave in accordance with the agency’s leave requesting
instruction for this absence. ID at 6.
¶8 When, as here, an employee’s need for FMLA leave is unforeseeable, and
leave cannot be requested in advance, the pertinent regulation requires the
employee to “provide notice within a reasonable period of time appropriate to the
circumstances involved.” See 5 C.F.R. § 630.1207(d). Although an agency may
2
The appellant may even have reported his September 5 absence the next day. The
administrative judge found that the appellant reported his September 5 departure to his
supervisor’s secretary when he called her on September 6, to say that he would not be
coming in that day, but the testimony cited by the administrative judge actually
contradicts that finding, compare ID at 5, with HT at 157. Nevertheless, it is clear that
the appellant reported his September 5 departure, at the very least, within 2 days. See
HT at 157; see also 0217-I-3 IAF, Tab 3 at 15; PFR File, Tab 3 at 15.
3
The appellant’s supervisor instructed him to resubmit his leave request for
September 5. 0217-I-2 IAF, Tab 24 at 25. The appellant did so, but the resubmitted
request, which bears the same leave request form number, 507455, instead grants leave
for September 6. Id. at 28. Nevertheless, as discussed below, because the agency’s
leave instruction provides that an employee may use leave without pay (LWOP) instead
of credit hours for an FMLA-qualifying absence, the type of leave requested was not
relevant to whether the appellant’s request should have been approved. See 0217-I-2
IAF, Tab 17 at 50-51.
6
apply its own procedures to leave requests under the FMLA it may not apply a
more restrictive policy than that provided under the FMLA and may not deny the
employee leave for failure to follow agency procedures. 5 U.S.C. § 6383; Burge
v. Department of the Air Force, 82 M.S.P.R. 75, 85, (1999); 5 C.F.R. § 1206(e).
¶9 In this matter, regarding the appellant’s September 5 absence, not only has
the agency applied a more restrictive notice policy than the “reasonable period of
time appropriate to the circumstances involved” standard set forth in 5 C.F.R.
§ 630.1207(d), it also has applied a more stringent standard than it had applied in
a similar episode involving the appellant just a few weeks earlier. Specifically,
the appellant’s supervisor testified that, in August, the appellant had left the
office early under similar circumstances after calling his daughter to bring him
home, and, although he acknowledged that the appellant “didn’t notify [him] for a
couple days later,” because the appellant “notified [him] when he could” the
supervisor testified “[t]hat was fine.” HT at 157. Moreover, the reason the
appellant’s supervisor rejected the appellant’s timely leave request—because the
appellant apparently sought to use credit hours that had not yet been credited to
his account—is an inappropriate basis to deny the request. The agency’s leave
instruction specifically provides that an employee on FMLA leave may use
LWOP as a matter of right. See 0217-I-2 IAF, Tab 17 at 50-51. Thus, the
appellant, at his option, could use LWOP in lieu of the credit hours he requested
for the September 5 absence, making the type of leave requested irrelevant to the
analysis. Accordingly, because we do not sustain the only remaining
specification of AWOL, we REVERSE the appellant’s 30-day suspension.
The removal action
¶10 Save for the reasonableness of the penalty, we agree with the administrative
judge’s analysis of this action. ID at 7-12. As noted above, the administrative
judge declined to sustain the interrelated AWOL and providing false/misleading
information charges, which involved the appellant’s absences on November 1 and
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2, 2012, but she sustained the disrespectful conduct charge. ID at 7-12.
Regarding the AWOL and false information charges, the administrative judge
found that the appellant provided consistent, transparent, and direct testimony
without contradiction as to his whereabouts on November 1, and considering the
totality of the circumstances, she found that the appellant requested leave and
should not have been considered AWOL for that date. ID at 9. Concerning
November 2, the administrative judge found that “the agency failed to present any
evidence via testimony or timecards regarding the appellant’s AWOL.” ID at 9.
Thus, the administrative judge found that the agency failed to prove the AWOL
charge by preponderant evidence. ID at 9. Regarding the false information
charge, again citing the appellant’s straightforward testimony, and finding the
testimony of the appellant’s supervisor “vague and scattered,” the administrative
judge found that the agency failed to establish by preponderant evidence that the
appellant intentionally provided false information on his timecard and she
therefore did not sustain the charge of providing false/misleading information.
ID at 9-11.
¶11 In its cross-petition for review, the agency argues that, contrary to the
administrative judge’s finding, the record does not reflect that the appellant
requested leave in advance for his short absence on November 1. PFR File, Tab 3
at 9. The appellant testified that he worked almost 9 hours on November 1, well
in excess of a full day, and that he left the base around 3:30 p.m. to retrieve some
books he needed for an office presentation that evening, which, because of the
amount of time he had worked that day, would therefore be covered by credit
hours earned and taken that day. HT at 447-49, 599-602, 605, 612. Although the
chronology is unclear, the record nevertheless reflects that the appellant did
request leave for this absence but that his supervisor denied the request because
the appellant selected LWOP instead of requesting to use credit hours for the
absence. 0217-I-2 IAF, Tab 24 at 75; HT at 449. Most importantly though, in the
remarks section of that denial, the appellant’s supervisor specifically told the
8
appellant that he did not believe that the appellant would even need to take leave
if he both worked at least 8 hours that day and was present during core hours,
which the supervisor specified as between 9:00 a.m. to 11:00 a.m. and 1:00 p.m.
to 3:00 p.m. 0217-I-2 IAF, Tab 24 at 75. As noted above, the record reflects that
the appellant worked more than 8 hours and that he was present during the
designated core hours on November 1. Thus, we agree with the administrative
judge that the agency failed to establish that the appellant was AWOL on
November 1.
¶12 Regarding the appellant’s absence on November 2, the agency maintains
that the appellant was absent after 12:00 noon and that his absence was not
authorized in advance. PFR File, Tab 3 at 7-8. The appellant testified that he left
the office at noon with the anticipation of taking his medicine at home, as was his
usual practice, but he did not return to the office at 1:00 p.m. that day because he
had a bad reaction to his medicine which essentially rendered him unable to
contact his supervisor for the rest of the day. HT at 605-06, 610. Moreover, the
record reflects that the appellant requested leave for this episode on the next
business day, Monday, November 5, 2012. 0217-I-2 IAF, Tab 24 at 70-71; HT
at 611. Thus, just as with the September 5, 2012 absence analyzed in the
suspension action above, the appellant’s need for FMLA-covered leave in this
instance was not foreseeable, and we find that the appellant requested leave
within a reasonable period of time appropriate to the circumstances involved and
therefore was not AWOL. See 5 C.F.R. § 630.1207(d). Furthermore, we agree
with the administrative judge that the appellant’s straightforward explanation of
the circumstances involved here precludes a finding that he supplied false or
misleading information with regard to this episode. ID at 10-11.
¶13 Regarding the third charge, we agree with the administrative judge that the
appellant’s November 27, 2012 email to his supervisor was indeed disrespectful.
ID at 11-12; 0217-I-2 IAF, Tab 21 at 69. In the email, which the appellant
testified that he sent because it was the only way he knew to get the attention of
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the higher-ups that he copied on it, HT at 472, he essentially accused his
supervisor of racism in pursuing his removal and asserted that, in doing so, the
supervisor was “starting to make a fool” of himself and others, including the
several members of the agency’s “Upper Management” whom the appellant
copied on the message, 0217-I-2 IAF, Tab 21 at 69. In his petition for review, the
appellant explains that he sent the email at issue in response to what he perceived
as a “badgering” email from his supervisor and that, at the time, he felt
discriminated against on the basis of race and felt justified in challenging him on
that basis. PFR File, Tab 1 at 15. The appellant also challenges the penalty,
arguing that the agency identified no authority supporting removal in a situation
like this, where the only sustained charge is disrespectful conduct towards a
supervisor and the record establishes a tense relationship between the parties.
PFR File, Tab 5 at 6.
¶14 Although, as the administrative judge acknowledged, the appellant and his
supervisor clearly had a contentious relationship, ID at 9, the appellant’s
frustration does not excuse his conduct. Nevertheless, as noted above, Board law
is consistent in finding that removal is not appropriate for a single, first instance
of such misconduct. E.g., O’Neill v. Department of Housing & Urban
Development, 220 F.3d 1354, 1364 (Fed. Cir. 2000) (noting the Board’s
consistent view that “insolent disrespect toward supervisors so seriously
undermines the capacity of management to maintain employee efficiency and
discipline that no agency should be expected to exercise forbearance for such
conduct more than once”) (quoting Redfearn v. Department of Labor, 58 M.S.P.R.
307, 316 (1993); see, e.g., Suggs v. Department of Veterans Affairs, 113 M.S.P.R.
671, ¶ 15 (2010) (a 30-day suspension is the maximum reasonable penalty for
single sustained specification of disrespectful conduct), aff’d 415 F. App’x 240
(Fed. Cir. 2011).
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ORDER
¶15 We ORDER the agency to restore the appellant effective May 3, 2013, and
to substitute a 30-day suspension for the removal. See Kerr v. National
Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶16 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶17 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶18 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶19 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
11
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
12
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.