Rex W. Allred v. Department of Health and Human Services

786 F.2d 1128, 1986 U.S. App. LEXIS 20031

• Court: Court of Appeals for the Federal Circuit
• Decided: March 18, 1986
• Docket: Appeal 85-1865
• Status: Published

Opinions

MARKEY, Chief Judge.

Rex W. Allred (Allred) petitions for review of Merit Systems Protection Board (Board) decisions Nos. AT07528310341 and AT07528310123, reported at 23 M.S.P.R. 478, sustaining his indefinite suspension and removal by the Department of Health and Human Services (HHS or agency) for child molestation. We affirm.

Background

Allred was employed by HHS at their regional office in Atlanta, Georgia, as a Supervisory Cost Accountant, GS-14. That post required him to represent the agency before state and local governments, universities, hospitals, and various other grantees in preparing cost allocation plans to ensure the plans conformed with the agency’s regulations. Also, Allred was required to perform various managerial duties.

On June 20, 1982, Allred was arrested for having a sexual encounter with a twelve-year-old boy to whom he paid ten dollars. He was charged with child molestation, a felony under Georgia law. On the same day, he signed a statement admitting to the allegations of the arresting officers. On September 30, Allred’s supervisor proposed to suspend Allred indefinitely pending disposition of the criminal case against him. Effective October 17, Allred was suspended.

On October 13, Allred entered a nolo contendere plea under Georgia’s First Offender Act to one felony count of child molestation. The Superior Court of DeKalb County, Georgia, imposed a $500 fine on Allred and placed him on five years probation.

On January 7, 1983, Allred was removed from his position for violating the agency’s Standards of Conduct. See 45 C.F.R. §§ 73.735-101, 73.735-201(a) (1985). All-red appealed the suspension and the removal to the Board and the appeals were consolidated.

The presiding official reversed the agency’s suspension and removal of Allred based on a finding that no nexus existed between the appellant’s off-duty misconduct and his official duties as a Supervisory Cost Accountant. The full Board reversed, finding that the presiding official gave too little weight to the testimony of Allred’s supervisors who testified that they had lost trust and confidence in Allred. Considering that testimony, the Board found that Allred failed to rebut the presumption of nexus which exists in cases of egregious off-duty misconduct. 23 M.S.P.R. at 480.

OPINION

On this apjaeal, Allred argues, inter alia, that at the time the suspension became effective the agency was aware that Allred’s criminal charges had been disposed of and that the agency should therefore have given him the required 30 days notice of the proposed indefinite suspension. 5 U.S.C. § 7513(b)(1). However, Allred has failed to show that that argument was presented to the presiding official. Therefore, that issue has not been preserved and is not before this court.

Allred does not contest that substantial evidence supports the charge of his off-duty criminal misconduct. Thus, the issue before the court is whether substantial evidence supports the agency’s determination that his removal was “only for such cause as will promote the efficiency of the service.” 5 U.S.C. § 7513(a); see White v. United States Postal Service, 768 F.2d 334, 336 (Fed.Cir.1985); 5 U.S.C. § 2302(b)(10).

The Presumption of Nexus

Before the Board, the agency must show by a preponderance of the evidence that the employee’s offending conduct is related to the employee’s job-related responsibilities so that the removal would “promote the efficiency of the service.” Brown v. Department of Transportation, 735 F.2d 543, 548 (Fed.Cir.1984). However, a presumption of that “nexus” may arise in instances where the employee’s conduct is so egregious that “it speaks for itself.” Hayes v. Department of Army, 727 F.2d 1535, 1539 (Fed.Cir.1984); see Merrit v. Department of Justice, 6 MSPB 493, 6 M.S.P.R. 585 (1981). This presumption, applicable to employees who engage in egregious misconduct, “places an extraordinary burden on an employee, for it forces him to prove the negative proposition that his retention would not adversely affect the efficiency of the service.” Crofoot v. United States Government Printing Office, 761 F.2d 661, 664 (Fed.Cir.1985).

Allred contends that his single act of child molestation does not rise to the level of egregiousness, distinguishing his misconduct from that in cases which involved “repeated acts of sexual misconduct, or sexual misconduct combined’with violence,” and conjecturing that his trial judge, having allowed a plea of nolo contendere, must not have thought his crime “egregious”. We disagree.

Neither the number of crimes nor the allowance of a discretionary nolo contendere plea can be controlling. Allred admits to the commission of an abhorrent act and cannot now downplay the seriousness of his offense.

The Board did not abuse its discretion when it found that Allred’s misconduct was sufficiently egregious to raise a presumption of nexus. The presumption rests on the nature of the misconduct itself. - Reliance on the presumption is unnecessary where the misconduct’s adverse effect on the efficiency of the service is clearly shown by factors other than the nature per se of the conduct. That the Board may have unnecessarily discussed the presumption where, as here, there is uncontroverted evidence that the offense is directly opposed to the agency’s mission, does not require reversal of the Board’s decision. The mission of HHS is to administer health and social services for the disadvantaged, elderly, disabled, indigent and children, and to oversee the administration of those services by others. Allred’s supervisor testified that the victim of Allred’s offense is among those the agency tries to help. Thus, Allred’s conduct is antithetical to the very programs which he was to monitor.

Courts have repeatedly held .that where an employee’s misconduct is contrary to the agency’s mission, the agency need not present proof, of a direct effect on the employee’s job performance. See, e.g., Masino v. United States, 589 F.2d 1048, 1056, 218 Ct.Cl. 531 (1978) (customs officer dismissed for using marijuana off-duty, a substance he was assigned to exclude from the country); Giles v. United States, 553 F.2d 647, 650, 213 Ct.Cl. 602 (1977) (IRS agent dismissed for failing to file timely tax returns). This is so because the “misconduct was of a character likely to undermine public confidence in the agency, and thus impair the agency’s efficiency, although it might not affect the employee’s job performance.” Wild v. United States Department of Housing and Urban Development, 692 F.2d 1129, 1132 (7th Cir.1982). In these circumstances, the agency should not have “to wait for an on-the-job violation before dismissing an offending employee.” Borsari v. Federal Aviation Administration, 699 F.2d 106, 110 (2d Cir.1983).

The Board spoke in terms of the presumption of nexus. That presumption, like all presumptions, must not be and is not viewed by the Board or by this court as irrebuttable. Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 2233, 37 L.Ed.2d 63 (1973). To deny a fair opportunity to rebut the presumption of nexus would violate the due process clause. Heiner v. Donnan, 285 U.S. 312, 329, 52 S.Ct. 358, 362, 76 L.Ed. 772 (1932).

Having been given.that fair opportunity, Allred contends on appeal that he has rebutted the presumption, citing the presiding official’s recognition of his subordinates’ statements that his performance between his arrest and indefinite suspension indicated to them that he would still be able to function, that there was no adverse publicity, and that an indirect supervisor had not lost confidence in him. The Board said that statements of coworkers did not rebut the presumption. The Board held that Allred’s direct supervisors’ loss of trust and confidence in one who represented the agency to other agencies, grantees, state governments, and private institutions, adversely affected the employer-employee relationship and thus the efficiency of the service. 23 M.S.P.R. at 480, citing Johnson v. Department of Health and Human Services, 22 M.S.P.R. 521 (1984), and Williams v. General Services Administration, 22 M.S.P.R. 476 (1984), aff'd without opinion, 770 F.2d 182 (Fed.Cir.1985). We agree with the Board.

We need not here decide whether in another case a bare presumption might be rebutted by testimony of coworkers that they considered an employee’s after-arrest performance satisfactory and other factors cited by Allred. Considered in terms of rebuttal, Allred’s evidence is insufficient in this case when pitted against the direct relationship of his misconduct to the agency’s mission and the showing that his supervisors had lost trust and confidence in him. See, e.g., Williams, supra, 22 M.S. P.R. at 478-79; Evans v. Department of the Navy, 10 MSPB 353, 354, 11 M.S.P.R. 407, 409 (1982); Doe v. National Security Agency, 6 MSPB 467, 472, 6 M.S.P.R. 555, 562 (1981), aff'd sub. nom., Stalans v. National Security Agency, 678 F.2d 482 (4th Cir.1982). Moreover, employees can be expected to exhibit their best behavior in the face of a strong possibility that the agency will soon be acting to remove them.

Penalty

Allred argues that his removal was an overly harsh penalty. The government responds that Allred failed to present that issue “before the Board.” Allred counters: (1) he did not have to raise the issue before the Board because the agency petitioned for review; and (2) he did raise the issue before the presiding official “by reference when he attached [to his appeals form] a summarization of his oral reply which advanced the argument that the penalty was overly harsh.”

The government’s potentially misleading reference to “the Board” was an unfortunate result of the tendency to speak of the “presiding official” and “the Board” as though they were interchangeable, a phenomenon occasioned by the frequency with which opinions and decisions of presiding officials become those of the Board through inaction by the latter. Because the government knew that the agency, not Allred, had appealed to the full Board, we deem it unlikely that government counsel intended to charge Allred with failure to raise the issue before only the full Board.

Upon review of the record, it is clear that Allred never mentioned the mitigation issue at the hearing before the presiding official. In his appeals form, Allred assigned the agency’s conclusion on nexus as the sole reason the agency was wrong in discharging him. In support of that allegation, Allred cited on the appeals form certain letters and a Summarization of Oral Reply prepared by the Regional Director as a memorandum of his meeting with Allred and Allred’s counsel. The mere attachment of an oral reply summarization to the appeals form, and notation of the attachment on the form, is ordinarily insufficient in itself to raise every issue mentioned in the summarization, although the issue of undue harshness of penalty is so basic that, under particular circumstances, citation on a form attachment may be such as to have clearly raised it to the attention of the presiding official.

Presiding officials cannot be required to consider and decide every issue mentioned in oral reply where, as here, an employee and his counsel elect to forego even mentioning that issue before the presiding official. At least in those cases in which an employee is represented by counsel, it is not the duty of the presiding official to substitute for counsel and to “try the case” for the represented employee. Nor would it ordinarily be appropriate to reward one who totally disregarded an issue at the hearing before the presiding official with a reversal or remand when he attempts to resurrect that issue before this court.¹

The dissent says it is always part of the agency’s affirmative burden of proof to establish the reasonableness of the penalty. We deal here, however, not with whether an issue may at the outset be present in a case, but with whether a petitioner may remain silent on that issue until he gets here, and then require that the record reflect proof the same as that the agency would have offered if he had spoken. It is undisputed that there must be some basis in the record for the reasonableness of the penalty, but there is no requirement that the legal proof by the agency must be the same when the penalty is not challenged as it might be when the penalty is challenged. When the agency’s choice of penalty goes unchallenged until this court is reached, the petitioner cannot then for the first time argue that the agency should have done as much to establish reasonableness of penalty as it would have if he had challenged the penalty.

Here the agency based removal on unchallenged regulations. Because Allred did not attack the validity of those regulations, and because he never mentioned the reasonableness-of-penalty issue, the agency’s showing that he violated the regulations must be seen as sufficient in this case to satisfy the agency’s initial burden to establish a prima facie case of reasonableness of the penalty. When the agency makes a prima facie case of proper penalty which goes unchallenged by petitioner, we must hold that the agency has satisfied its burden of persuasion on that issue. That is true of the agency’s “preponderance” burden respecting the basis for removal. Hale v. Department of Transportation, 772 F.2d 882 (Fed.Cir.1985) (where agency prima facie case of strike participation went unrebutted by petitioner, agency satisfied its burden of persuasion). It is no less true of the agency’s burden respecting reasonableness of penalty.

CONCLUSION

The court is persuaded that Allred’s suspension and removal were not arbitrary, capricious, an abuse of discretion, contrary to law, obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c); see Hayes v. Department of the Navy, 727 F.2d 1535, 1540 (Fed.Cir.1984).

Accordingly, the board’s decision sustaining Allred’s suspension and removal from his position as Supervisory Cost Accountant is affirmed.

AFFIRMED.

1 . In discussing the indefinite suspension, the presiding official cited the Board’s opinion in Martin v. Department of the Treasury, 10 MSPB 568, 574, 12 M.S.P.R. 12, 20 (1982), and made the statement about the agency's burden quoted in the dissent. We cannot agree that that statement can serve as a means for this court to find that Allred had not waived the issue he disregarded, or to substitute a new defense in which factors submitted to show no nexus are converted into factors supporting mitigation.