Giesler v. Merit Systems Protection Bd. of U.S. (Dept. of Transp., F. A. A.)

• Decision Date: 18 August 1982
• Docket Number: No. 80-2176,80-2176
• Citation: 686 F.2d 844
• Parties: Joseph M. GIESLER, Jr., Petitioner, v. MERIT SYSTEMS PROTECTION BOARD OF the UNITED STATES (DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION), Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 844

686 F.2d 844

Joseph M. GIESLER, Jr., Petitioner, v. MERIT SYSTEMS PROTECTION BOARD OF the UNITED STATES (DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION), Respondent.

No. 80-2176.

United States Court of Appeals Tenth Circuit.

Aug. 18, 1982.

Rebecca Elliott, Fort Collins, Colo., for petitioner.

Janis E. Chapman, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty. and Beverly Buck, Sp. Asst. U. S. Atty., Denver, Colo., on the brief), for respondent.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Joseph M. Giesler (Giesler) appeals from a final decision of the Merit Systems Protection Board of the United States (Board).

Giesler, a veteran, was initially trained and employed by the Department of Transportation's Federal Aviation Administration in early 1970 as an air traffic control specialist. Giesler has since continuously served as an air traffic controller and received numerous commendations for his superior work.

In October 1978, Giesler was serving as a controller at the Federal Aviation Administration's Air Route Traffic Control Center in Longmont, Colorado, and was a member of the Professional Air Traffic Controllers Organization (PATCO).

Giesler's union, PATCO, and the FAA had entered into an agreement relative to disciplinary proceedings, set forth in Article 6, Section 1, to-wit:

No disciplinary action may result from a meeting between an employee and his supervisor and/or other management official unless the employee is advised that such meeting is for the purpose of discussing discipline or potential discipline, and the employee is allowed Union representation, if he so desires. If a request for representation is made, it shall be honored. However, nothing in this Section shall preclude the subsequent use of previous discussions or events as a basis for disciplinary action in another instance involving nonadherence to pertinent directives/regulations or repetitive instances of misconduct.

(Pet. Ex. 1, p. 47).

On October 12, 13, 14, and 15, 1978, at a time when he was scheduled to work, Giesler arranged for sick leave and went hunting. On November 1, 1978, Francis Herman, Giesler's supervisor, having heard rumors to the effect that Giesler had not been ill but had in fact taken sick leave to go hunting, approached Giesler and inquired if he had actually been hunting on the days he had arranged for sick leave. In response, Giesler stated "negative". Giesler also related to Herman that he was in Glenwood Springs at the time suffering from what he thought to be intestinal flu.

On November 2, 1978, Herman met with Giesler, accompanied by a union representative, to discuss further Giesler's sick leave for the days in question. During the course of this meeting Giesler denied, for the second time, that he had gone hunting during the period he had arranged for sick leave.

Herman later filed a written report delineating his reasons for the initial contact with Giesler, which stated in part:

... On or about October 18, 1978, Assistant Chief Mahrt and myself became involved in a discussion about ATCS Giesler's use of sick leave .... During our discussion we became aware that each of us had been confronted by other supervisors with innuendoes that it seemed to be common knowledge among controller personnel that Mr. Giesler was hunting with ATCS Ron Nusbaum while he was absent from duty on sick leave.

Having no proof or witnesses who had actual knowledge of the circumstances of Mr. Giesler's sick leave, but having a strong suspicion that what we were hearing might have some basis, Mr. Mahrt and I decided we had no alternative but to check into this matter further. We decided the best method would probably be direct confrontation upon Mr. Giesler's return to duty. Therefore, on November 1, 1978, when ATCS Giesler returned to duty, I met privately with him at approximately 1630 local time and confronted him with the suspicions we had regarding his use of sick leave on October 12, 13, 14, 15, 1978, and again at 1900 local time to clarify a few items.

(R., Vol. I at p. 45).

On November 30, 1978 Giesler and his union representative met with Herman a second time relative to Giesler's use of sick leave. During this meeting Giesler admitted, for the first time, that he had in fact gone hunting during the period he had arranged for sick leave and that he took sick leave because of his inability to obtain annual leave at that time.

On February 1, 1979, Giesler was notified by Ralph Kiss, Chief, Denver Center, that it was being proposed that he be terminated for being "absent without approved leave for four consecutive work days" and for "providing false information to your supervisor in the inquiry of sick leave usage".

On March 23, 1979, Giesler was afforded the opportunity to make an "oral presentation" relative to his proposed termination. During the course of this meeting, one Mr. Eads, of PATCO stated that: perhaps Giesler, like many government employees had been lured into a false sense of security regarding the requirement to not abuse sick leave; consideration should be given to Giesler's past record as a good and productive employee; and that the punishment (termination) appeared to be too severe and harsh and not in keeping with the agency's policy regarding progressive discipline.

Giesler stated that he came to Denver for the good of the agency; he had served in the military; his sick leave abuse was not preplanned but arose as the result of an overall situation involving loyalty to a fellow employee who was under duress; and that as a result of his friendship he felt compelled to accompany his fellow employee who had planned to go to the mountains alone with a weapon.

During the same meeting a Mr. Haggerty of PATCO appeared in Giesler's behalf and related: Giesler was not aware of the seriousness of the November 1, 1978 meeting between himself and Francis Herman nor was a union representative present; the presence of a union representative may have changed the outcome of the meeting; and that at the more formal meeting on November 2, 1978, Giesler felt compelled to "stick with his story of November 1".

At the conclusion of Giesler's oral presentation, a recommendation was made that Giesler's punishment be reduced from termination to a 35 day suspension. Included within the memorandum recommending the suspension was the following:

In view of the above, and after careful review of the case file, it is my opinion that removal in this case is not in keeping with the agency's policy regarding progressive discipline. However, the matter is serious and the pursuit of truth in this case has required a great deal of extraordinary effort on the part of the agency management in reaching the point where we are at present.

(R., Vol. I at p. 40).

On April 12, 1979 Giesler was formally notified that his proposed termination was being reduced to a suspension of 35 calendar days. Included within this was notification to Giesler of his right to appeal the decision to the Board.

On May 18, 1982, Giesler formally appealed his suspension to the Board. Within his appeal Giesler contended, inter alia, that: the Federal Aviation Administration (FAA) had violated its agreement with PATCO that no disciplinary action could result from a meeting when an employee is not advised of the possible consequences of the meeting and is not afforded the opportunity to have a union representative present; he was not apprised of the possible consequences of the November 1, 1978 meeting or that he could have a union representative present; the questions relative to his abuse of sick leave should have been handled in an informal manner; the suspension violated the FAA's policy of graduated punishment; the suspension was too severe and did not promote punishing like behavior consistently; and that the charges against him be dismissed or alternatively "be corrected to specify sick leave abuse".

A board certified hearing was conducted on July 5, 1979. ¹ Thereafter, on July 19, 1979, the presiding official entered her initial decision, which determined, inter alia: Giesler was absent without approved leave for four consecutive work days; after being properly advised of his right to representation and of the possible consequences of his wrongful use of sick leave, Giesler denied (for the second time) during the November 2, 1978 meeting that he had been hunting on the days in question; in view of the November 2, 1978, meeting, the FAA did not commit harmful error when it did not apprise Giesler of the procedural effect of the November 1, 1978 meeting and his right to have a union representative present; the FAA attempted to settle the matter informally but Giesler failed to cooperate with the FAA's informal attempt at resolution; FAA agency orders provide that the penalties for intentionally giving false information during an inquiry range from written reprimand to removal; the FAA did not abuse its discretion in imposing the 35 day suspension; and the suspension herein "was taken for such cause as will promote the efficiency of the service." (R., Vol. I at p. 118).

Giesler subsequently petitioned Board for a review of the initial decision of the presiding official alleging that: the FAA had failed to follow its regulations relative to the presence of a union representative at meetings for disciplinary purposes; the penalty imposed was too severe; and that he had been denied meaningful discovery prior to the hearing with regard to the precept of like penalties for like offenses.

In affirming the initial decision of the presiding official the Board determined, inter alia: there was no violation of the union agreement with regard to union representation in a meeting to discuss possible abuse of sick leave when, as here, petitioner (Giesler) met with his supervisor on three occasions and a union representative was present during the last two meetings; Giesler was...