King v. Erickson, s. 95-3745

• Decision Date: 16 July 1996
• Docket Number: 95-3746,Nos. 95-3745,s. 95-3745
• Citation: 89 F.3d 1575
• Parties: 13 IER Cases 836 James B. KING, Director, Office of Personnel Management, Petitioner, v. Lester E. ERICKSON, Jr., Respondent, and Jeanette M. Walsh, Respondent, and Michael G. Barrett and Jerome K. Roberts, Respondents, and Sharon Kye, Respondent, and Merit Systems Protection Board, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1575

89 F.3d 1575

13 IER Cases 836

James B. KING, Director, Office of Personnel Management, Petitioner, v. Lester E. ERICKSON, Jr., Respondent, and Jeanette M. Walsh, Respondent,

and

Michael G. Barrett and Jerome K. Roberts, Respondents,

and

Sharon Kye, Respondent,

and

Merit Systems Protection Board, Respondent.

Nos. 95-3745, 95-3746.

United States Court of Appeals,

Federal Circuit.

July 16, 1996.

Todd M. Hughes, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., argued, for petitioner. With him on the brief were Frank W. Hunger, Assistant Attorney General, and David M. Cohen, Director. Of counsel was Lorraine Lewis, General Counsel, Steven E. Abow, Joseph E. McCann, and Ana A. Mazzi, Office of General Counsel, Office of Personnel Management, Washington, D.C.

Gail A. Heglund, Best Roberts and Associates, Albuquerque, New Mexico, argued, for respondents Michael G. Barrett and Jerome K. Roberts. With her on the brief was Hannah B. Best.

M. Jefferson Euchler, Neil C. Bonney & Associates, Virginia Beach, Virginia, argued, for respondent Sharon Kye.

Paul E. Marth, Forman, Marth, Black & Angle, P.A., Greensboro, North Carolina, for respondent Lester E. Erickson, Jr.

John R. Koch, Reichert, Wenner, Koch & Provinzino, P.A., St. Cloud, Minnesota, for respondent Jeanette M. Walsh.

Rita S. Arendal, Attorney, Office of General Counsel, U.S. Merit Systems Protection Board, Washington, D.C., for respondent Merit Systems Protection Board. Also for respondent were Mary L. Jennings, General Counsel, and Martha B. Schneider, Assistant General Counsel.

Before RICH, LOURIE, and RADER, Circuit Judges.

LOURIE, Circuit Judge.

The Director of the Office of Personnel Management ("OPM") petitions for review of (1) the final decision of the Merit Systems Protection Board holding that an agency may not charge an employee both with misconduct and with making false statements regarding the alleged misconduct, Walsh v. Department of Veterans Affairs, 62 M.S.P.R. 586 (1994), and (2) the final decisions of the board reversing falsification charges based on its holding in Walsh. Erickson v. Department of the Treasury, 63 M.S.P.R. 80 (1994); Kye v. Defense Logistics Agency, 64 M.S.P.R. 570 (1994); Barrett v. Department of the Interior, 65 M.S.P.R. 186 (1994). We affirm.

BACKGROUND

A. Walsh

The Department of Veterans Affairs employed Jeanette M. Walsh as a Social Services Assistant at the agency's medical center in St. Cloud, Minnesota. The agency removed her for engaging in a sexual relationship with a patient, engaging in improper financial dealings with patients, and providing false statements to the agency regarding her alleged relationship with a patient. In particular, Walsh provided inconsistent statements regarding when her relationship with the patient began and how long it lasted. In a December 1988 meeting with her supervisor, Walsh acknowledged that she was having an intimate relationship with the patient, who at the time was no longer an in-patient. However, in a December 1991 affidavit, she averred that during the December 1988 meeting with her supervisor she accurately denied having an intimate relationship with the patient at that time. In spite of this inconsistency, she always stated that she did not have an intimate relationship with the patient while he was an in-patient at the

agency's facility from April 1988 until November 1, 1988

In an initial decision, an administrative judge (AJ) found that the agency failed to prove the first two charges. Based on his findings regarding these charges, the AJ did not uphold the third charge. The agency petitioned for review by the full board. The board reversed the AJ's finding that the agency had failed to prove the first two charges, but held that the agency improperly charged Walsh with making false statements regarding the alleged misconduct. Relying on our decision in Grubka v. Department of the Treasury, 858 F.2d 1570, 1575 (Fed.Cir.1988), the board held that an agency may not charge an employee both with misconduct and with making false statements regarding the alleged misconduct. The board recognized that certain of its prior decisions had held to the contrary. Walsh, 62 M.S.P.R. at 594 (citing Greer v. United States Postal Serv., 43 M.S.P.R. 180, 184-85 (1990); Kane v. Department of Veterans Affairs, 46 M.S.P.R. 203, 209 (1990); Sterling v. Department of Defense, 46 M.S.P.R. 177, 185-86 (1990); Hornbuckle v. Department of the Army, 45 M.S.P.R. 50, 54 n. 2 (1990); Hill v. Department of the Army, 44 M.S.P.R. 607, 611-12 (1990)). However, the board also determined that those decisions relied upon a faulty analysis of Grubka. In Grubka, we stated that a falsification charge based upon an employee's denial of misconduct "has no substance, is frivolous, and the decision of the AJ sustaining it is not supported by substantial evidence and is erroneous as a matter of law...." Grubka, 858 F.2d at 1575. The board in Walsh reasoned that, because we used the conjunction "and" in our holding in Grubka, two findings were made, one of which was that the charge was erroneous as a matter of law. According to the board, Grubka thus supports the proposition that a separate charge of making false statements regarding alleged misconduct is erroneous as a matter of law and is therefore improper.

The board also stated that in Greer and its progeny, it mischaracterized the due process concerns enunciated in Grubka. According to the board, these concerns were not, as stated in previous board decisions, based upon the Fifth Amendment right against compulsory self-incrimination but, rather, were based upon the due process right to be heard on a charge and to not have a falsification charge automatically sustained on the ground of sustaining the related misconduct. The board also determined that it erred in Greer when it stated that, as an alternative to providing false statements during an agency investigation, an employee may simply refuse to answer questions. According to the board, such a statement was contrary to precedential board decisions and Federal Circuit precedent; an employee may be removed solely for refusing to answer questions during an agency investigation if she is warned that she may be removed for not answering and that her statements cannot be used against her in a criminal prosecution. See Weston v. United States Dep't of Hous. and Urban Dev., 724 F.2d 943, 949 (Fed.Cir.1983); see also Haine v. Department of the Navy, 41 M.S.P.R. 462, 469 (1989). Accordingly, the board overruled Greer and its progeny to the extent that their holdings were contrary to Grubka.

The board mitigated Walsh's penalty to a 90-day suspension. In determining the appropriate penalty, the board noted that it previously had held that an employee's false statements may be considered in determining a maximum reasonable penalty for misconduct. However, it stated that consideration of false statements in determining a penalty would conflict with the holding in Grubka and would in effect penalize an employee for denying a charge. Accordingly, the board held that an employee's alleged false statements in response to an agency inquiry may not properly be considered in determining a penalty.

B. Erickson

The Department of the Treasury employed Lester R. Erickson as a Supervisory Police Officer with the Bureau of Printing and Engraving. The agency removed Erickson for conduct unbecoming a supervisor and for making false statements in matters of official interest. The first charge was based on the agency's allegation that Erickson encouraged

an employee of an agency contractor to make a "mad laugher" telephone call to another agency police officer during duty hours. The "mad laugher" calls were calls to employees at their duty stations during which the caller would laugh continuously and then hang up without identifying himself or herself

The falsification charge was based on Erickson's denials that he participated in the "mad laugher" calls. In particular, when responding to a list of questions from an agency investigator, he made the following allegedly false statements:

Question 2: "Approximate the number of occasions you made 'Mad Laugher' calls and to whom by name?"

Answer: "None."

Question 6: "Approximate time you quit participating in 'Mad Laugher' calls."

Answer: "I never participated."

Question 9: "Specifically, how many times did you ask your subordinates to cease the 'Mad Laugher' calls?"

Answer: "None, [b]ecause I do not know who is doing it."

Question 12: "Are you willing to specifically state all those that are participants in the 'Mad Laugher' telephone calls."

Answer: "No--I do not know the true identification of the 'Mad Laugher.' In my opinion it is 95% of the police unit [and] also possibly personnel in Production."

In an initial decision, an AJ upheld both charges. The agency provided a sworn statement and subsequent affidavit by the person who was allegedly encouraged by Erickson to make one of the "mad laugher" calls. The statement and affidavit affirmed the truth of the charges, and the AJ found them to be credible. The AJ also found that the agency had told Erickson to refrain from making "mad laugher" calls and that encouraging another to engage in such a prank was disruptive to the agency's mission. Further, based on the AJ's belief in the credibility of the statements in the affidavit, as well as affidavits of others, the AJ found that Erickson had knowledge of and participated in the "mad laugher" calls and that he made false statements when he denied such involvement. The AJ also held that Erickson had not established that the agency's action was based on an alleged handicapping condition of alcoholism. Accordingly, the AJ upheld the penalty of removal.

Erickson petitioned for review by the full board. The board determined that his petition did not meet the criteria for review under 5 C.F.R. § 1201.115; however, it...