MINAHAN AND SHAPIRO, P.C.
ATTORNEYS AT LAW
165 SOUTH UNION BOULEVARD
LAKEWOOD, COLORADO 80228
LAW FIRM NEWS
New Approach to Falsification of Employment Applications
The MSPB has taken a fresh look at its old attitude on falsification of employment applications. Previously, the Board almost always sustained removal for such falsification no matter what the circumstances, on the basis that the employee improperly obtained the job. In Perez v. U.S. Postal Service, 35 GERR 1010 (1997), the Board mitigated removal to a written reprimand, since the employment application was submitted in 1982, since the employee had committed no misconduct during his employment and since the criminal conviction he concealed was not a very serious matter.
Vauge Charge/ No Charge
In a disturbing development, the MSPB ruled in Otero v. U.S. Postal Service, 73 MSPR 198 (1997) that agencies are not required to label misconduct with any particular charge, such as falsification, theft or AWOL. The MSPB said that an agency can simply charge "unacceptable conduct" and then describe specific actions on the employee's part which it believes impairs the efficiency of the service. If an agency chooses to make a particular charge, however, then the agency will be required to prove the elements of that charge. We think this runs contrary to the requirements of the Constitution, as interpreted by the Supreme Court, which mandate both a charge and an explanation of the evidence. The MSPB did not mention the Supreme Court decisions in its decision.
When AWOL is Appropriate
In Patterson v. Dept. of the Air Force, 74 MSPR 648 (1997) the MSPB clarified when an employee can be charged AWOL. If the employee has sufficient sick leave, he may not be charged with AWOL if he can produce medical evidence to justify his absence. If the employee has exhausted all leave, however, he may be placed in an AWOL status even if he is incapacitated, if there is no foreseeable end to his absence and the absence is a burden on the agency.
Employees who just "go through the motions" in the administrative process so they can get to federal court must be careful to participate in the process nevertheless. In Barnes v. Levitt, 35 GERR 1072 (5th Cir. 1997), an employee's federal lawsuit was dismissed on the basis that he failed to exhaust his administrative remedies. The problem was that the employee repeatedly refused to answer questions, provide details, make a statement or give a deposition during the administrative process.
In an interesting development, the Fourth Circuit ruled that white male employees have standing to complain about sexual and racial harassment of female and black co-workers. The Court agreed with the employee that the supervisor's behavior created a hostile environment for everyone and had a negative affect on working conditions. Childress v. Richmond, 74 FEP Cases 749 (4th Cir. 1997).
The FLRA issued a number of interesting decisions recently, mostly reaffirming old principles: