Merit Systems Protection Board

United States of America
MERIT SYSTEMS PROTECTION BOARD
Northeastern Regional Office

BEATRICE HEILPERN,

Appellant,

DEPARTMENT OF THE ARMY,

Agency.

Docket Number

PH-0752-03-0271-I-1

September 30, 2003

Joshua F. Bowers, Esquire, Washington, D.C., for the appellant.

Cpt. Phyllis L. Brown, USA, Aberdeen Proving Ground, Maryland, for the agency.

BEFORE

Terrence M. McStravick
Administrative Judge

INITIAL DECISION

INTRODUCTION

On June 2, 2003, Beatrice Heilpern appealed from a removal action, effective May 31, 2003, the Department of the Army, U.S. Army Center for Health Promotion and Preventive Medicine, Aberdeen Proving Ground, Maryland. Appeal File (AF), Tab 1. The Board has jurisdiction over this appeal pursuant to 5 U.S.C. § 7511-7513.

The hearing which the appellant requested was held on August 26, 2003, at the Aberdeen Proving Ground, Maryland. For the reasons stated below, the action of the agency is MITIGATED to a ninety-day suspension.

ANALYSIS AND FINDINGS

The agency has the burden of demonstrating, by a preponderance of the evidence, the factual basis of its reason for removing the appellant from the federal service.

In order to have an adverse action, such as a removal, sustained by the Board, an agency has the burden of establishing, by a preponderance of the evidence, the factual basis of the reasons cited to support the action against the appellant. See 5 U.S.C. § 7701(c)(1)(B). A “preponderance of the evidence” is defined as the degree of relevant evidence which a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. See 5 C.F.R. § 1201.56(c)(2) (2003).

The agency has demonstrated, by a preponderance of the evidence, the factual basis for its reason for removing the appellant.

The agency proposed to remove the appellant from her position as an Equipment Program Technician, GS-303-06, in a notice issued on April 28, 2003. AF, Tab 6, Subtab 4e. The reason cited by the agency to support the proposed removal was the appellant’s alleged failure to obey the instructions of her supervisor and maintain proper personal hygiene in the workplace. The specifics of the reason were set forth by Lori J. Atkins, Chief, Property Division:

a. On 10 April 2003, I received a complaint from an employee that you had an offensive odor. I then verified this complaint personally. At that time, I approached another employee to inquire whether this person noticed an odor and this person replied, “No, not until she used some kind of spray all over herself.”

b. At 0930 hours, I notified you that since there had been a complaint and that I also could smell your odor, you were to go home to take care of your personal hygiene and return to duty. You did insist that you had taken a shower in the morning and that your clothes were clean. I noticed at this time that you had changed your shirt since you had reported to work. At that time, you stated that you had asked a co-worker if you smelled. You then proceeded to call your co-worker into your office and ask if this co-worker was the one who had made the complaint. I interrupted and told you that it was another co-worker and myself who had complained.

c. At approximately 0950 hours, you called looking for Mr. Wilson or myself. At that time, I spoke with you and you informed me that the reason you smelled was because you had gone into the bathroom and had used a feminine deodorant spray that has an odor. You then went on to say that the employee must have smelled it in the hallway when you used the spray in your office. I then asked about the contradiction. You originally told me that you sprayed it on your clothes in the bathroom.

d. On 11 April 2003, at approximately 0700 hours, I was informed by a co-worker that you had informed another employee that you knew you smelled when you came into work on 10 April 2003 because you could smell yourself in the car while driving to work.

The agency stated that the present incident was the appellant’s fourth offense. The agency relied upon the appellant's past disciplinary record in order not only to establish that the instant event was a fourth offense, but also to determine what penalty it should impose on appellant for the sustained current offense. Among the matters argued by the agency in addition to the past disciplinary record, was the fact that the appellant was on notice that the agency would not tolerate a continuation of the offenses, and the improbability of the appellant’s rehabilitation.

I note that the Board will not review the merits of these past offenses so long as the past disciplinary record meets three criteria:

(1) (1) the employee was informed of the action in writing;

(2) (2) the employee was given an opportunity to dispute the action by having it reviewed by an authority higher than the one who imposed the penalty; and,

(3) (3) the action was made a matter of record.

See Murdock-Dougthy v. Department of the Air Force, 70 M.S.P.R. 119, 124 (1996); Morgan v. Department of Defense, 63 M.S.P.R. 58, 61 (1994); Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981).

The agency cited a ten (10) day suspension for the appellant’s failure to obey the instructions of her supervisor and maintain proper personal hygiene in the workplace, effective March 10, 2003; a five (5) day suspension for the appellant’s failure to obey the instructions of her supervisor and maintain proper personal hygiene in the workplace, effective April 22, 2002, and a Letter of Reprimand for the appellant’s failure to obey the instructions of her supervisor and maintain proper personal hygiene in the workplace, effective January 18, 2003, to support the removal action as a fourth offense. The agency documentation with respect to these three elements of the appellant's past disciplinary record meets all of the criteria cited in Bolling. AF, Tab 6; Subtabs 4j through 4z; 4aa through 4ii.

The appellant has admitted the current offenses and has stipulated the existence of the past disciplinary record. Moreover, the appellant concedes that the past disciplinary record exists. Hearing Tapes (HT) 1 and 6. (Opening and Closing Statements of the Appellant’s Representative.) Moreover, the appellant withdrew the allegation of handicap discrimination and conceded that the present infraction, combined with her past disciplinary record merits some sanction. Id.

I find that the representations of the appellant’s representative are the equivalent of a stipulation that the appellant committed the offense at issue and that there is a nexus between the efficiency of the service and that conduct. The Board has held that a stipulation is sufficient to prove the fact alleged. See Swift v. Office of Personnel Management, 48 M.S.P.R. 441, 445 (1991). The Board has also held that a stipulation that proves the essential elements of the charge satisfies the agency's burden of proof by a preponderance of the evidence. See D'Iorio v. Department of Housing and Urban Development, 34 M.S.P.R. 351, 354-55 (1987). Accordingly, I find that the sole remaining issue in this appeal is the appropriateness of the penalty.

The penalty chosen by the agency was not reasonable under the circumstances of this case.

Therefore, the only remaining issue to be determined is whether the penalty chosen by the agency is reasonable under the circumstances of this case. The Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The Board will modify the agency's chosen penalty only if it finds that the agency failed to weigh the relevant factors or that the agency's judgment clearly exceeded the limits of reasonableness. See Toth v. United States Postal Service, 76 M.S.P.R. 36, 39 (1997); Thomas v. Department of Defense, 66 M.S.P.R. 546, 550, aff'd, 64 F.3d 677 (Fed. Cir. 1995) (Table).

In making determinations regarding the reasonableness of the penalty, the Board gives due deference to the agency's discretion in exercising its managerial function of maintaining employee discipline and efficiency, recognizing that the Board's function is not to displace management's responsibility, but to ensure that managerial judgment has been properly exercised. See Battle v. Department of Transportation, 63 M.S.P.R. 403, 410 (1994). However, a penalty which is grossly disproportionate to the offense, in light of the particular circumstances of the case, is an abuse of discretion. See Casias v. Department of the Army, 62 M.S.P.R. 130, 132 (1994). In evaluating a penalty the Board will consider as the primary factors, the nature and seriousness of the misconduct and its relations to the employee’s duties, position, including whether the offense was intentional or frequently repeated. See Rackers v. Department of Justice, 79 M.S.P.R. 262, 282 (1998).

The record contains evidence that the deciding official, Paul Wilson, Deputy Chief of Staff for Logistics, did consider the Douglas factors in arriving at the determination to impose the penalty of removal on the appellant. Specifically, Mr. Wilson found that the appellant’s conduct was serious and had a direct impact on the working place, had been repeated over an extended period of time, and had continued despite counselings. Mr. Wilson acknowledged receipt of the documentation which indicated that the appellant’s problem had a medical basis but found that it did not provide a ground for mitigating the penalty. The main factor relied on by Mr. Wilson was the fact that there were long intervals when the appellant’s personal hygiene was not a problem. Moreover, Mr. Wilson noted that the appellant was able to obey her supervisor’s orders concerning her hygiene when she was confronted with the problem. Therefore, Mr. Wilson concluded that notwithstanding the appellant’s medical condition, she had still exhibited an ability to control her hygiene for considerable periods of time. Accordingly, Mr. Wilson concluded that the appellant’s failure to do so was deliberate and indicated that she had poor potential for rehabilitation. AF, Tab 5, Subtab 4b; HT 3 (Testimony of Paul Wilson).

The appellant relies on the well-established Board principle that evidence that an employee’s medical condition played a part in the charged conduct is ordinarily entitled to considerable weight as a significant mitigating factor. See Robb v. Department of Defense, 77 M.S.P.R. 130, 137 (1998); Roseman v. Department of the Treasury, 76 M.S.P.R. 334, 345 (1997).

The medical condition which is the basis of the appellant’s conduct is a diagnosis of Depression; Chronic or Recurrent, Severe. According, to Teresa J. Duncan-Kelly, M.S.W., Licensed Clinical Social Worker, Psychologist, the appellant’s depression causes periods of mood and anxiety disturbances characterized by extreme mood lability, tearfulness, suicidal ideation, hopelessness, lack of motivation, poor self-esteem, poor self-care, poor self-worth, anxiousness, decreased energy, lack of pleasure, and panic attacks. AF, Tab 13, Attachment 12. Ms. Duncan-Kelly indicated, and confirmed in her testimony that these conditions, particularly the lack of motivation, decreased energy and poor self-care resulted in the conduct which led to both the instant and past charges concerning her poor hygiene. HT 1 and 2 (Testimony of Teresa J. Duncan-Kelly).

Ms. Duncan-Kelly conceded that the appellant had been treated for depression for a considerable period, including the time frame when most of her offenses had occurred. However, Ms. Duncan-Kelly testified that the previous therapists who had been treating the appellant had either not been empathetic with her or had relied solely upon medication rather than therapy. Ms. Duncan-Kelly testified that treatment by medication was insufficient to the appellant was now being treated with a course of frequent psychotherapy, a regimen of different psychotropic medication and the construction of a family support system to help her with her difficulties, particularly those related to the her hygiene. Id. Ms. Duncan-Kelly testified that so long as these three conditions continued, the appellant should be able to maintain proper hygiene. Id.

Ms. Elysse Lassiter, the appellant’s daughter testified that she had been previously unaware of the appellant’s problems, but that since becoming cognizant of them, she has paid greater attention to her mother’s hygienic condition. Ms. Lassiter indicated that she would continue to do so in the future. HT 5 (Testimony of Elysse Lassiter).

The agency emphasized the appellant’s conduct had occurred over a considerable period of time and that in the past she had shown an ability to control her hygiene. I am sympathetic with the agency’s situation. There is no question that under ordinary circumstances a removal would be sustained in the instant case. However, the appellant has presented evidence that her conduct was due to a medical condition, which, prior to her latest hospitalization, had not been fully diagnosed or appropriately treated. The appellant has also presented evidence that she has insight into her problems, and, that with the assistance of her family and medical professionals she will be able to address her situation, including that related to work.

I find that under the circumstances of this case a ninety-day suspension is the maximum reasonable penalty. This will impress on the appellant that her conduct is serious and that she must continue both her therapy and medication. Any recurrence of this conduct in the future would fully justify the penalty of removal.

Decision

The agency’s action is MITIGATED.

ORDER

I ORDER the agency to cancel the removal and substitute in its place a ninety-day suspension without pay. This action must be accomplished no later than 20 calendar days after the date this initial decision becomes final.

I ORDER the agency to pay appellant by check or through electronic funds transfer for the appropriate amount of back pay, with interest and to adjust benefits with appropriate credits and deductions in accordance with the Office of Personnel Management's regulations no later than 60 calendar days after the date this initial decision becomes final. I ORDER the appellant to cooperate in good faith with the agency's efforts to compute the amount of back pay and benefits due and to provide all necessary information requested by the agency to help it comply.

If there is a dispute about the amount of back pay due, I ORDER the agency to pay appellant by check or through electronic funds transfer for the undisputed amount no later than 60 calendar days after the date this initial decision becomes final. Appellant may then file a petition for enforcement with this office to resolve the disputed amount.

I ORDER the agency to inform appellant in writing of all actions taken to comply with the Board's Order and the date on which it believes it has fully complied. If not notified, appellant must ask the agency about its efforts to comply before filing a petition for enforcement with this office.

INTERIM RELIEF

If a petition for review is filed by either party, I ORDER the agency to provide interim relief to the appellant in accordance with 5 U.S.C. § 7701(b)(2)(A). The relief shall be effective as of the date of this decision and will remain in effect until the decision of the Board becomes final.

As part of interim relief, I ORDER the agency to effect the appellant’s appointment to the position of Equipment Program Technician , GS-303-06. The appellant shall receive the pay and benefits of this position while any petition for review is pending, even if the agency determines that the appellant’s return to or presence in the workplace would be unduly disruptive.

Any petition for review or cross petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order, either by providing the required interim relief or by satisfying the requirements of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B). If the appellant challenges this certification, the Board will issue an order affording the agency the opportunity to submit evidence of its compliance. If an agency petition or cross petition for review does not include this certification, or if the agency does not provide evidence of compliance in response to the Board’s order, the Board may dismiss the agency’s petition or cross petition for review on that basis.

FOR THE BOARD: ______________________________

Terrence M. McStravick
Administrative Judge

notice to parties concerning settlement

The date that this initial decision becomes final, which is set forth below, is the last day that the administrative judge may vacate the initial decision in order to accept a settlement agreement into the record. See 5 C.F.R. § 1201.112(a)(5).

NOTICE TO APPELLANT

This initial decision will become final on November 4, 2003, unless a petition for review is filed by that date or the Board reopens the case on its own motion. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if this initial decision is received by you more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals for the Federal Circuit. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a petition for review. Your petition, with supporting evidence and argument, must be filed with:

The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.,
Washington, DC 20419

If you file a petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anything to the Board that is already part of the record. Your petition must be postmarked, faxed, or hand-delivered no later than the date this initial decision becomes final, or if this initial decision is received by you more than 5 days after the date of issuance, 30 days after the date you actually receive the initial decision. If you fail to provide a statement with your petition that you have either mailed, faxed, or hand-delivered a copy of your petition to the agency, your petition will be rejected and returned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board's final decision, you may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court before this decision becomes final. To be timely, your petition must be received by the court no later than 60 calendar days after the date this initial decision becomes final.

ATTORNEY FEES

If no petition for review is filed, you may ask for the payment of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable) by filing a motion with this office as soon as possible, but no later than 60 calendar days after the date this initial decision becomes final. Any such motion must be prepared in accordance with the provisions of 5 C.F.R. Part 1201, Subpart H, and applicable case law.

ENFORCEMENT

If, after the agency has informed you that it has fully complied with this decision, you believe that there has not been full compliance, you may ask the Board to enforce its decision by filing a petition for enforcement with this office, describing specifically the reasons why you believe there is noncompliance. Your petition must include the date and results of any communications regarding compliance, and a statement showing that a copy of the petition was either mailed or hand-delivered to the agency.

Any petition for enforcement must be filed no more than 30 days after the date of service of the agency’s notice that it has complied with the decision. If you believe that your petition is filed late, you should include a statement and evidence showing good cause for the delay and a request for an extension of time for filing.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations.