The Government's Burden of Proof in Misconduct Appeals to the Merit Systems Protection Board (MSPB)

If a Federal government agency suspends an employee for more than 15 days, or fires that employee for improper conduct, the employee may have an appeal right to the Merit Systems Protection Board. If the employee can appeal to the MSPB, usually the agency has the burden of proving its case against the federal employee.

What, then, does the Agency have to prove? The first thing the Agency has to prove is that the misconduct occurred. This proof is usually broken into two parts:

* The conduct charged actually occurred;
* The conduct charged is misconduct;

Here's how that works. When an employee is charged with being AWOL (Absent Without Leave), the Agency has to prove that employee was absent (the conduct occurred), and the employee did not have approved leave (the conduct charged was misconduct).

After proving the misconduct, the Agency will have to prove that the misconduct bears a nexus to, the Agency's mission. It is a rare case where this is contested, but it can be contested. Most commonly, this happens in three scenarios:

1) The alleged wrongdoing occurred entirely outside the government workplace and doesn't have any effect on the job or the Agency's mission (example, off-duty drug use, etc);

2) The misconduct occurred in the workplace work, but has no connection to the Agency's mission;

3) The misconduct that the Agency has charged is a novel or a vague charge.

If the Agency can prove the misconduct, and can prove the misconduct has a nexus to the mission of the Agency, then it only has to prove that the Deciding Official chose a reasonable penalty. To do so requires analysis of the "Douglas Factors".

The MSPB is deferential to the Deciding Official's selection of a penalty. In fact, if the Agency proves all of the charges of misconduct, the Board cannot change the penalty unless the Agency's penalty is not "within the tolerable bounds of reason".

If, however, the Agency fails to prove all of its charges, the MSPB Judge can substitute his or her own penalty. This is called mitigation - the Judge can mitigate the Agency's penalty to the most reasonable penalty after applying the Douglas Factors.

The Agency only has to show the above elements by what the law calls a "preponderance of the evidence". "Preponderance of the evidence" has a verbose legal definition, but here's what it means in its essence - 51%. If 51% of the evidence supports the Agency's charges, in the opinion of the Administrative Judge, the Agency will win. if 51% of the evidence does not support the Agency's charges, in the opinion of the Administrative Judge, you may be able to prevail.

If you are representing yourself, your Administrative Judge should explain all of this to you very clearly, and provide more information specific to your case.

If you are a federal employee and have questions about your MSPB Appeal, contact an experienced MSPB attorney.

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