How Do You Feel About This 2-1 MSPB Decision?

By Deborah Hopkins, October 24, 2022

FELTG Nation, we have our first 2022 MSPB decision with a dissent! Let’s take a look.

The appellant was a GS-14 Security Specialist at DTRA. One morning, he put food from the cafeteria’s self-serve breakfast buffet in a container, paid for it, and put the container in a bag. He then returned to the breakfast buffet, removed the container from the bag, put more food in the container, and returned the container to the bag. He then left the cafeteria without paying for the additional food, which was valued at $5.

A cafeteria employee who witnessed the incident reported it to her supervisor, and the matter was referred to the OIG. Investigators interviewed the appellant and the cafeteria employee, reviewed the video surveillance footage, and concluded that the appellant “knowingly took food from the cafeteria without rendering payment.”

The agency proposed removal based on a charge of larceny in violation of 18 U.S.C. § 661. The Deciding Official (DO) upheld the removal.

On appeal, the appellant claimed his failure to pay for the second helping of food was inadvertent and occurred as a result of his Type 2 diabetes. He stated that he urgently needed to eat because his blood sugar level was low, and that his fixation on eating caused him to lose focus on paying for the additional food.

The Administrative Judge (AJ) assessed the appellant’s credibility and determined the blood sugar argument was not convincing. The judge also noted the appellant failed to exhibit a clear, direct, or straightforward demeanor during his testimony. In addition, his testimony was not consistent with the record evidence, including the cafeteria video footage.

On PFR, Members Harris and Limon held that the DO failed to appropriately consider all relevant Douglas factors in determining the penalty.

The de minimis nature of the theft. The DO said that “what matters is the action,” and someone who would steal “has a character flaw” and “should not be working as a senior security professional … with a security clearance in the Department of Defense.”

The appellant’s 30 years of discipline-free service and the appellant’s outstanding performance record.

The DO referenced these factors as “NEUTRAL” and at hearing that she considered these factors irrelevant because stealing “shows a character flaw.”

The Board majority said the DO should have considered those factors as mitigating, rather than neutral.

Another interesting piece of the case: Although not addressed by the DO or the AJ, the Board held that the appellant did not have custody or control over the stolen items as part of his official duties. The Board considered this a mitigating factor as well. The outcome: “A 90-day suspension recognizes the seriousness of the offense and its severity.”

Member Leavitt disagreed with his colleagues. In the dissent, he said the agency should have received penalty deference. His explanation relied on video evidence of the appellant that indicated he was hiding from a police officer in the cafeteria and, therefore, was aware of his actions. In addition, the appellant initially answered the OIG investigator’s question denying the conduct, then changed his story when shown the security video.

Member Leavitt also wrote that he believed the DO considered all the DFs, and properly determined that the mitigating factors were outweighed by “the level of responsibility, the fiduciary responsibilities, and the expectation of exemplary personal conduct.” His impression of the penalty: “To me, the deciding official clearly demonstrated that she considered all specific, relevant mitigating factors before determining the penalty and showed that the agency’s judgment to impose a removal did not clearly exceed the limits of reasonableness.”

Chin v. DOD/DTRA, 2022 MSPB 34 (Oct. 7, 2022).

In speaking with students and with other FELTG instructors about this case, I’ve concluded that not everyone will agree with the outcome.

• Some of you will agree with the Board because a removal seems too severe for such a small amount of money.
• Others of you might think that removal was warranted given that the conduct violated the law.
• Some of you might personally disagree with the removal but acknowledge that the agency should receive deference on the penalty, as it was not outside the bounds of reasonableness.
• And others might think a different penalty was appropriate.

Let’s continue the discussion December 5-9 during MSPB Law Week. Hopkins@FELTG.com