MSPB Rules Employee Charged with Falsification in the Hiring Process Intended to Mislead
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
Appellant was fired by his private employer in February 2015. In March 2015, as part of the application process for a position with the Department of the Army, he electronically completed and signed Option Form (OF) 306, Declaration for Federal Employment. On this form, he answered “no” in response to the question of whether he had “been fired from any job for any reason” during the last 5 years. Appellant was appointed to the position in May 2015, after which he signed a hardcopy OF-306. He similarly answered “no” to the question of previous firings in the hardcopy.
The Office of Personnel Management (OPM) then completed an investigation into appellant’s background and suitability. In March 2016, OPM instructed the Department of the Army to separate appellant from service, cancel his eligibility, and debar him for a period of 3 years. OPM made this negative suitability determination based on two charges: (1) misconduct or negligence in employment; and (2) material, intentional false statement, or deception or fraud in examination or appointment. The Department of the Army subsequently separated appellant from service.
Appellant challenged OPM’s suitability determination and filed an appeal. The administrative judge found that OPM only proved the second charge of material, intentional false statement in examination or appointment. Therefore, she ordered OPM to determine whether the suitability action was appropriate based only on this charge. Appellant filed a petition for review with the Merit Systems Protection Board.
In order to prevail in a negative suitability determination appeal, OPM must demonstrate that appellant’s conduct or character may have an impact on the integrity or efficiency of the service based on one of the factors from C.F.R. § 731.202(b). Here, the relevant factor is “material, intentional false statement, or deception or fraud in examination or appointment.”
Upon review of OPM’s decision, if the Board determines that one or more of the charges brought by OPM is supported by preponderance of the evidence, it must affirm the suitability determination even if all specifications are not sustained. But, if the Board sustains fewer than all charges, it must remand the case to OPM and OPM must determine whether the suitability action is appropriate based only on the sustained charge.
Here, the sustained charge was based on the allegation that the appellant provided false information by twice denying he had been previously fired. In order to sustain this charge, OPM had to prove that the appellant (1) supplied incorrect information; and (2) knowingly supplied the information with the intent to defraud, deceive, or mislead the agency. Although appellant admitted that he provided incorrect information, he argues that he did not intend to defraud or mislead the agency.
In order to prove intent in a falsification charge, the “agency must establish that the employee intended to deceive the agency for his own private material gain.” Intent can be shown through circumstantial evidence or it may be inferred when the employee acted with “reckless disregard for the truth or with conscious purpose to avoid learning the truth.” Securing employment satisfies the requirement that the employee be acting for his own private material gain.
Importantly, though, the agency must also consider the employee’s plausible explanation for providing incorrect information. Here, appellant argued that the falsification charge should not be sustained because he simply misunderstood the question. In particular, the appellant claimed that he understood the question to only be referring to Federal employment. The question at issue stated, “During the last 5 years, have you been fired from any job for any reason . . . or were you debarred from Federal employment by [OPM] or any other Federal agency?”
The Board agreed with the administrative judge. It reasoned that the question of whether appellant had “been fired from any job for any reason” was plain on its face and used ordinary language. Therefore, “appellant’s purported interpretation of the OF-306 question was unreasonable and implausible.” It also rejected Appellant’s argument that the inclusion of the word “Federal” implied that the question only asked about federal employment, noting that the question asked if appellant had been fired from “any job . . . or . . . debarred from Federal employment.”
The appellant next argued that his appeal should be treated as a chapter 75 action and his removal should have been mitigated to a lower penalty. The Board rejected this argument, pointing to the National Defense Authorization Act for Fiscal Year 2016 (NDAA). The NDAA makes clear that “a suitability determination taken by [OPM] under regulations prescribed by [OPM]” is not an appealable adverse action under chapter 75. Here, OPM made a suitability determination pursuant to its regulations, and the Board did not have authority to adjudicate the matter as a chapter 75 adverse action. The Board further clarified that appellant was serving an initial 1-year probation period and, therefore, was not an “employee” with chapter 75 Board appeal rights. Accordingly, the Board had no power to review or modify the ultimate action of separation from federal service.
For these reasons, the Board determined that the matter had been properly remanded to OPM to determine whether appellant’s separation was appropriate based on the charge of falsification.
Find the full case here: Odoh v. OPM.
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