Employment Application Statements
In a two-to-one decision, The U.S. Merit Systems Protection Board recently reaffirmed some cardinal rules about what it takes for an agency to prove that an employee intentionally falsified an employment application. Over the dissent of Chairman Neil McPhie, Vice Chair Rose and Member Sapin in Guerrero v. Dept. of Veterans Affairs, 2007 MSPB 132 (May 8, 2007), ordered a terminated employee reinstated to his former position.
The opinion said that Guerrero was fired on three charges: that he falsified his employment application, Optional Form 306; that he falsified his qualifications on Optional form 612 by stating that he held prior civilian service as a GS-12 employee and that he had degrees from certain accredited colleges and/or universities, and that he misrepresented his qualifications on the same bases.
With respect to the first charge, the Board majority held that the proposal letter never put the employee on notice of what specific information the agency believed Guerrero falsified. Nor was such information included in the decision letter. Although the agency argued at the hearing that a discrepancy in the dates of Guerrero’s military service formed the basis of the charge, the notice of proposed removal “failed to inform [Guerrero] of this fact.” The majority agreed with the administrative judge that this charge could not be sustained. The majority reaffirmed that the Board is required to adjudicate a case solely on the grounds invoked by the agency. It is not the Board’s place to substitute what might be a better basis for removal than that identified by the agency. Therefore, because the agency denied Guerrero due process by not putting him on notice of what falsification he allegedly made, this charge could not be sustained.
With respect to the second and third charges, the Board held that because these two charges were based on the same misconduct requiring the same elements of proof, they would be merged into a single charge. The majority reiterated Board case law that, to prove a charge of falsification, the agency must prove by the preponderant evidence that the employee supplied false information knowingly with the intent to deceive. Further, the majority noted that whether intent has been proved depends on the totality of the circumstances, including the employee’s plausible explanations.
On the allegation that Guerrero falsely stated that he occupied a GS-12 biomedical engineer position, during the time he was in the military, with intent to mislead the agency as to his qualifications for a GS-13 position, the majority noted that in the same employment form he stated that he had never held a civilian position within the federal government. Guerrero testified that he would not intentionally indicate he was a GS-12 in the military because the military does not use such grades. That was consistent also with his attached resume which did not indicate he had been a GS-12 during the claimed time period. Guerrero explained that he had been confused in filling out the application and put the title of the position for which he was applying on the wrong section of the form. The majority held that, when Guerrero’s entire application package is “considered as a whole,” it appears that he completed his application in haste. While Guerrero was “careless,” the record did not reflect intentional falsification. Therefore, because the agency cold not establish the requisite element of intent, the falsification charge could not be sustained.
The next specification was that Guerrero falsified his education background by listing degrees from unaccredited colleges and universities. The majority noted that the employment application prompted applicants to list “colleges and universities attended.” The form did not say that only accredited schools should be included. The majority further considered that in listing the schools attended, Guerrero got their names slightly wrong. For example, Guerrero stated that he attended Trinity Southern College rather than Trinity Southern University, the correct name of the school he attended. The agency argued that this was an attempt by Guerrero to mislead the agency to believe he attended Trinity College in Hartford, Connecticut, which is accredited. But the majority found the agency’s argument unpersuasive because Guerrero listed the location of the school as being in Plano, Texas. Moreover, the majority noted that the charge against Guerrero was not that he falsified the identity of the colleges from which he had obtained degrees, but rather only charged him with having degrees from unaccredited schools. The Board only reviews grounds for removal invoked by the agency. Here, there was no falsification in listing unaccredited schools because the employment application was not so limiting.
Chairman McPhie would have sustained the removal. McPhie wrote that Guerrero’s reply to the proposal showed he understood the nature of the allegation in the first charge and was, therefore, not denied due process notice. With respect to the falsification remaining charges, the Chairman found that Guerrero’s misstatements showed he acted “with reckless disregard” as to the truth of his statements, which equates with intent. The majority criticized Chairman McPhie’s dissent as omitting any analysis of charge one and also as not being based on the record evidence.
Mr. Guerrero was ordered to be returned to work with full back pay and benefits.
This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.
