Dawson v. Department of Agriculture
| Decision Date | 21 August 2014 |
| Docket Number | AT-0752-13-0589-I-1,AT-0752-13-0317-I-1,AT-0752-13-0217-I-1 |
| Court | Merit Systems Protection Board |
| Parties | Ricky N. Dawson, Appellant, v. Department of Agriculture, Agency. 2014 MSPB 67 |
Susan G. James, Montgomery, Alabama, for the appellant.
Jerry D. Dawson, Springfield, Virginia, for the appellant.
Patsy J. Gallagher, Saint Louis, Missouri, for the agency.
BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member Member Robbins issues a separate concurring opinion.
¶1 Before the Board are three petitions for review of initial decisions concerning the appellant's indefinite suspension, removal, and application for early retirement under the Voluntary Early Retirement Authority (VERA). The agency has petitioned for review of the two initial decisions that reversed the appellant's indefinite suspension and granted his application for early retirement and the appellant has petitioned for review of the initial decision that sustained his removal. We JOIN the three appeals under 5 C.F.R. § 1201.36. For the reasons set forth below, we GRANT the agency's petitions for review and REVERSE the initial decisions insofar as the administrative judge reversed the appellant's indefinite suspension and found that the appellant was entitled to a VERA benefit. We further DENY the appellant's petition for review and AFFIRM the administrative judge's determination to sustain the removal action.
¶2 In three separate appeals, the appellant challenges the agency's determinations to indefinitely suspend him from his GS-0301-13 position as an Area Director with the agency's Rural Housing Service in Camden, Alabama effective November 24, 2012; remove him from his position effective January 26, 2013; and deny his application for early retirement under VERA pursuant to authority delegated to the agency by the Office of Personnel Management (OPM).
¶3 Before turning to the analysis, a timeline is provided below that sets forth the salient facts in this case, which is based on the parties' stipulations in the appeals below.
Chronology of events
• November 6, 2012 - Proposed indefinite suspension notice issued.
• November 20, 2012 - The appellant pled guilty to a felony criminal charge of fraud by wire, radio or television (18 U.S.C. § 1343), due to underlying facts involving his embezzling $6, 225, 920.76 in government funds.
• November 21, 2012 - Decision letter issued regarding indefinite suspension.
• November 24, 2012 - Indefinite suspension effected.
• December 5, 2012 - Email memorandum issued announcing the agency's approval of an early buyout under either the VERA/Voluntary Separation Incentive Plan (VSIP). Because the appellant was suspended during the entire month of December 2012, he could not access his agency email account and was unaware of the December 5th memorandum about the VERA/VSIP.
• December 18, 2012 - Proposed removal letter issued.
• December 21, 2012 - End of "window period" for employees to apply for early retirement. The rules allowed that only a single Rural Development district employee would be granted a VERA, based on seniority, as calculated by the employees' service computation dates. Ultimately, a coworker of the appellant's, who has a service computation date in 1982, was granted a VERA. The appellant's service computation date was in 1979.
• January 24, 2013 - Final removal decision letter issued based on the appellant's plea of guilty to knowingly devising or participating in a scheme to defraud and/or obtaining money or property by means of false or fraudulent pretenses, representations, or promises.
• January 26, 2013 - Effective date of the appellant's removal.
• January 31, 2013 - Coworker retired early and obtained a VERA.
• March 8, 2013 - The appellant applied for early retirement, requesting a VERA.
• March 12, 2013 - The appellant was sentenced to 60 months in jail for criminal conviction. He was ordered to report to prison on May 31, 2013.
• Date uncertain - The agency subsequently denied the appellant's VERA request.
See Dawson v. Department of Agriculture, MSPB Docket No. AT-0752-13-0317-1-1 (May 16, 2013) Appeal File (AF) 0317, Tabs 5, 10.
¶4 After adjudicating the appeals, the administrative judge issued three initial decisions. In the first initial decision, the administrative judge reversed the indefinite suspension for two reasons: (1) the agency violated the appellant's constitutional right to due process; and (2) the suspension improperly occurred simultaneously with the notice of proposed removal period based on the same charged misconduct. Dawson v. Department of Agriculture, MSPB Docket No. AT-0752-13-0217-I-1, Initial Decision (Mar. 16, 2013) (ID 0217). In a second initial decision, the administrative judge sustained the removal action. Dawson v. Department of Agriculture, MSPB Docket No. AT-0752-13-0317-1-1, Initial Decision, (May 16, 2013) (ID 0317). A third initial decision ordered the agency to grant the appellant's application for early retirement under VERA. Dawson v. Department of Agriculture, MSPB Docket No. AT-0752-13-0589-1-1, Initial Decision, (Sept. 12, 2013) (ID 0589). The agency filed petitions for review challenging the administrative judge's determinations in the first and third initial decisions. The appellant filed a petition for review contesting the administrative judge's second initial decision.
The administrative judge correctly sustained the removal of the appellant and properly determined that the appellant did not prove his harmful error allegation.
¶5 As a preliminary matter, we find that the administrative judge correctly affirmed the agency's decision to remove the appellant based on his guilty plea to knowingly devising or participating in a scheme to defraud and/or obtain money or property by means of false or fraudulent pretenses representations, or promises. The parties stipulated that the appellant pled guilty to a charge of fraud by wire, radio, or television in federal court on November 20, 2012, and that he was sentenced to 60 months' imprisonment, beginning on May 31, 2013. Such criminal misconduct is a felony punishable by a fine or imprisonment for up to 20 years, or both. See 18 U.S.C. § 1343. As a result, the administrative judge correctly determined that the agency proved the charge, nexus, and that the penalty of removal was warranted. ID 0317 at 2-4. The administrative judge also properly found that the appellant failed to prove his harmful error claims. See ID 0317 at 4-6.
The administrative judge incorrectly reversed the indefinite suspension on the ground that the agency improperly imposed the suspension during some of the same time that coincided with the proposed removal period.
¶6 Next, the administrative judge found that, because the agency imposed an emergency or indefinite suspension that coincided with a notice period for a removal action, the indefinite suspension should be deemed improper. We disagree. It is true that, at times, the Board has held that, where an agency imposes a disciplinary or an adverse action because of an employee's misconduct, the agency is barred from subsequently taking another adverse action for the same reason. ID 0217 at 6-7 (). However, the precedent relied upon by the administrative judge in the initial decision has not been universally applied by the Board or even by our reviewing court. See Graybill v. U.S. Postal Service, 782 F.2d 1567, 1573 n.l (Fed. Cir. 1986) (the court held that the agency's imposition of both a suspension and a removal penalty for the appellant's arrest on charges of sexual misconduct involving a minor and his subsequent guilty plea did not constitute an abuse of discretion); Camaj v. Department of Homeland Security, 119 M.S.P.R. 95 (2012) (); Jones v. Department of the Army, 68 M.S.P.R. 398, 402 (1995) (). Relying on the case law cited immediately above, we find that the administrative judge's reason for reversing the indefinite suspension was erroneous.
¶7 In any event, we find that the appellant is not entitled to back pay for the more than 3 weeks of the indefinite suspension period (November 24-December 18, 2012), that transpired before the agency issued the notice of proposed removal because no overlap occurred with the two disciplinary actions during those 3 weeks.
The administrative judge erroneously determined that the agency did not provide the appellant with sufficient notice of the reasons for the indefinite suspension.
¶8 Also, in reversing the indefinite suspension, the administrative judge found that the agency violated the appellant's constitutional right to minimum due process of law by failing to specifically notify him in the proposal notice or decision letter that the agency had reasonable cause to believe he had committed a crime for which a sentence of imprisonment could be imposed. The administrative judge determined that this omission necessarily prevented the appellant from knowing what standard the agency would use to decide his indefinite suspension and thus, how he must respond to the proposal. ID 0217 at 6.
¶9 We disagree with the administrative judge's conclusion that a due process violation occurred here. In Cleveland Board of Education v. Loudermill, 470 U.S. 532,...
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