Petition for Writ of Certiorari — Hughes v. Merit Systems Protection Board

Supreme Court, U.@.

7 rrInED

— 94 596 MAR 15 1994

QEFICE OF THE CLERK

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ALICE B. HUGHES,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

PETITION FOR THE WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Herbert Creech

Attorney for Petitioner

1422 Chapel Street

Dayton, Ohio 45404

1-513-228-1086

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

STATEMENT OF QUESTIONS INVOLVED

I. WHETHER THE PETITIONER, A LICENSED

PRACTICAL NURSE EMPLOYED AT THE WRIGHT

PATTERSON AIR FORCE BASE, OHIO MEDICAL

CENTER, HAVING QUALIFIED SEVERAL YEARS

PREVIOUSLY TO ACCESS THE SECURED PRESCRIP.-

TION AREA, WAS ENTITLED TO RECEIVE NOTICE

AND OPPORTUNITY TO RESPOND PRIOR TO THE

SUMMARY REVOCATION OF HER ACCESS TO THE

SECURED AREA.

Il. WHETHER AN AGENCY THAT PLACES AN

EMPLOYEE ON ENFORCED LEAVE AND SUSPENSION

MUST COMPLY WITH THE DUE PROCESS PRO-

CEDURE OF ITS REGULATION, WHICH REGULA-

TION, EXCEPTING MEDICAL AND EMPLOYEE

WELFARE CASES, REQUIRES THE AGENCY TO PRO-

VIDE DISCIPLINED EMPLOYEE ADVANCE NOTICE

AND OPPORTUNITY TO RESPOND AS GUARANTEED

BY THE FIFTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION.

LIST OF PARTIES

PETITIONER

Alice B. Hughes

4981 Queensbury Road

Dayton, OH 45424

PETITIONER’S REPRESENTATIVE

Raymond W. O'Neal, Sr.

Attorney for Petitioner

7700 North Main Street

Dayton, OH 45415

RESPONDENT'S REPRESENTATIVE

Anita Marshall

U.S. MERIT SYSTEMS PROTECTION BOARD

1120 Vermont Avenue, N.W., Suite 116

Washington, D.C. 20419

AGENCY’S REPRESENTATIVE

Charles A. Buenning, Jr.

DEPARTMENT OF THE AIR FORCE

2750 MSSQ/MSCE (AREA A)

Wright-Patterson AFB, OH 45433-5001

OTHER

Ms. Marjorie Marks

OFFICE OF PERSONNEL MANAGEMENT

Employee Relations Division

1900 E. Street, N.W., Room 7412

Washington, D.C. 20415

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............0cc cece I

a oan 5 ay SG day ewe dae wee ene ewe iH

pp ee i ss) UI

py ea ye oe yy |». IV

CITATIONS TO OPINIONS BELOW ............... ]

JURISDICTIONAL GROUNDS..................... 2

CONSTITUTIONAL AND STATUTORY

ge ks | 2

STATEMEN! OF THE CASE ...............000008: 4

REASONS FOR GRANTING THE WRIT ............ 9

a 9

a ee 15

APPENDIX

Court and Agency Opinions....................... la

Deparment of Air Force Medical Center Regulation

COOL Grd ak eie Now vw eek eee ee lla

Department of Air Force Regulation 40-750 ......... 16a

IV

TABLE OF AUTHORITIES

CASES Page

Arnett v. Kennedy,

416 U.S. 134, 170-71, 94 S. Ct. 1683, 1652, 40

eI soe dean Nea ea Nw oon 1]

Cleveland Board of Education v. Loudermill,

____ U.S. ___, 105 S. Ct. 1487, 1495, 84 L.Ed.2d

SN oie hos ee ee eee ar ke Ao k's 11

DeSarno v. Department of Commerce,

761 F.2d 675, 660 (Fed. Cir. 1985)................. 10

Doe v. Casey,

re © er, Tn CEs BOD oss oc oe ke dec cevnces 10

Egan v. Department of Navy,

PRR RT) ere 10

Green v. McElroy,

360 U.S. 474, 502, 79S. Ct. 1400, 1416, 3 L.Ed.2d

IE og ge bee cs as os oy eink ie 04 ple 1]

Jones v. Department of Navy,

ry I oa vcelsas | ss 44da embed es 10

Rolles v. Civil Service Commission,

a RRR re a ee 10

Simmons v. Department of Navy,

ee a oko Vo ek ek ae Hee RA 10

STATUTES

eee i Sg oir eS ck ood Oc bh eed we ea’ 2, 3, 12

ge Re Re | nn 3, 12

3 U.S.C.A. T511(a)(@) and TS512(2) ..................4.. 3, 12

A ee |: 3, 9, 12, 16

are a te eee 2,3

AGENCY REGULATIONS

ed ee 8 | re ere rrr 3,9

AF Regulation 40-750, Sec. E, 23(a)(2)(b) ....3, 9, 12, 13, 15

AF Regulation 40-750, Sec. E, 18(a) and (b) . .3, 9, 12, 13, 15

AF Regulation 168-50, Parag. 3(e), 3(f)(2)

NE sass ke So os a oe ee 3, 4, 9, i3

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ALICE B. HUGHES,

Petitioner,

Vv.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

PETITION FOR THE WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

CITATIONS TO OPINIONS BELOW

Grievance of Alice B. Hughes, In The Matter-of Arbitra-

tion Between Air Force Logistics Command WPAFB, Ohio,

and American Federation of Government Employees, AFGE

Council No. 214, Expedited Arbitration No. AFB WP-91-3.

June 14, 1991.

Alice B. Hughes v. Department of The Air Force, United

States of America Merit Systems Protection Board, Docket

Number CH-0752-92-0473-1-1. Chicago Regional Office, July

23, 1992.

Alice B. Hughes v. Department of The Air Force, United

States of America Merit System Protection Board, Docket

Number CH-0752-92-0473-1-1, Chicago Regional Office,

December 2, 1992.

2

Alice B. Hughes v. Merit Systems Protection Board, (U.S.

Court of Appeals for the Federal Circuit), Case No. 93-3129

on appeal from Merit Systems Protection Board, October 7,

1993.

Alice B. Hughes v. Merit Systems Protection Board, (U.S.

Court of Appeals for the Federal Circuit), Case No. 93-3129,

Notice of Entry Of Judgment Without Opinion, October 9,

1993.

Alice B. Hughes v. Merit Systems Protection Board, (U.S.

Court of Appeals for the Federal Circuit), Case No. 93-3129,

Correction, Issued As A Mandate, January 14, 1994.

JURISDICTIONAL GROUNDS

The judgment of the Federal Circuit Court of Appeals was

issued October 7, 1993, and entered of record October 9,

1993. Said entries’ dates were recalled and corrected, which

decision was issued as a mandate January 14, 1994. Jurisdic-

tion is invoked pursuant to 28 U.S.C. 1257(3) in that peti-

tioner was deprived of rights secured her by the United States

Constitution. Also, the Rules of this Supreme Court grants

jurisdiction.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Constitutional Provisions

The “due process clause” of the Fifth and Fourteenth

Amendments of the United States Constitution

2. Statutes

5 U.S.C.A. 7501(2)

For the purpose of this subchapter—

(2) “suspension” means the placing of an employee,

for disciplinary reasons, in a temporary status

without duties and pay.

eee’

3

5 U.S.C.A. Sec. 7511(a)(1)(A)

(a) For the purpose of this subchapter—

(1) “employee” means—

(A) an individual in the competitive service who is

not serving a probationary or trial period under an

initial appointment or who has completed 1 year of

current continuous employment under other than a

temp»rary appointment limited to 1 year or less; and

5 U.S.C.A. Sec. 7511(a)(2)

(a) For the purpose of this subchapter—

(2) “suspension” has the meaning as set forth in sec-

tion 7501(2) of this title.

5 U.S.C.A. Sec. 7701(a)(1)

(a) An employee, or applicant for employment,

may submit an appeal to the Merit Systems Protec-

tion Board from any action which is appealable to

the Board under any law, rule, or regulation. An ap-

pellant shall have the right—

(1) toa hearing for which a transcript will be kept.

28 U.S.C. 1257(3)

Agency Regulations

5 C.F.R. Sec. 752.201-203

AF Regulation 40-750, Sec. E. Parag. 23(a)(2)

AF Regulation 40-750, Sec. E. Parag. 18(a) and (b)

AF Regulation 168-50, Parag. 3(e), 3(f)(2) and 6(c)

+

STATEMENT OF THE CASE

This is a Petition For The Writ of Certiorari To The United

States Court of Appeals For The Federal Circuit for the

record of its decision in Case Number 93-3129.

The petitioner, Alice B. Hughes, is a Licensed Practical

Nurse employed in the Medical Clinic at WPAFB, Ohio.

After receiving a negative arbitration ruling on June 14, 1991,

on May 23, 1992, she submitted to the Merit System Protec-

tions Board her appeal of the agency’s decision having

suspended her on two separate occasions.

In the Initial Decision dated July 23, 1992, the Board held

no jurisdiction over the requested appeal for reason the

suspension was less than 14 days, and subsequently denied

reconsideration.

On December 26, 1992, petitioner filed her petition for

review with the United States Court of Appeals For The

Federal Circuit, which Court affirmed the MSPB Decision.

Petitioner has been employed as a full time permanent civil

service employee, licensed practical nurse, by the Agency,

WPAFB Medical Center, for over twenty-one (21) years.

Prior to this incident, she had an excellent work record on this

job as an LPN at the Medical Center, as reflected by

outstanding and excellent performance ratings.

At the time of this incident, petitioner’s job duties consisted

of working as an LPN and substituting in specific areas for

RNs in the Gastroenterology Clinic (G.I.), providing care for

patients, including sedated recovering patients.

She had worked in this manner for seven years without any

discrepancy in her performance.

While working in G.I., pursuant to USAF MC Regulation

168-50, petitioner received clearance and was authorized and

granted access to the secured prescription medicine cabinet,

and she carried the cabinet keys on her person for this pur-

5

pose. Said regulation providing this authority is still in effect

at the time appellant initiated the agency appeal. Also, some

time prior to this incident, petitioner inquired about being

up-graded from GS-6 to GS-8, which up-grade would reflect

the greater responsibilities she performed, since petitioner

was substituting as stand-in for registered nurses.

On September 14, 1990, Lt. Col. Oczkowski, the unit

supervisor, and petitioner's second level supervisor, asked

petitioner to work September 17, 1990. Petitioner replied that

she had arranged for annual leave for the period September

17-28, 1990, returning on October 1, 1990.

On October 1, 1990, the day petitioner returned from

leave, Lt. Col. Oczkowski requested petitioner to provide her

the keys used to access drug storage cabinet, at the end of the

work shift. Petitioner provided her the keys.

On October 2, 1990, petitioner received a letter from Col.

Taylor and Lt. Col. Oczkowski revoking her authority to ad-

minister controlled drugs and access to the secured drugs

cabinet.

After giving up the keys to access the secured drug storage

unit, and during the month of October, 1990, petitioner con-

tinued to work in the Gastroenterology Clinic as completely

as possible. However, she sensed that working alone in the

clinic regularly without immediate access to the secured drug

cabinet, presented a danger to recovering and sedated pa-

tients who were required to receive certain prescription drugs

as necessary.

Petitioner verbally expressed this feeling of present danger

and the inability to immediately respond to recovering pa-

tients’ needs to her immediate and first level supervisor, Ma-

jor Rose Marie Barrientez; petitioner, therefore, told the Ma-

jor that she felt very uncomfortable about working in the G.I.

Clinic. Consequently, petitioner did not wish to continue to

work there alone, for fear of incurring responsibility for not

being able to contact another employee with access to the

6

secured prescription drug area if a patient had an urgent need

for a prescribed drug.

Since July 23, 1986, petitioner was authorized to carry keys

for access to the secured prescription drugs prescribed by

treating physicians as deemed necessary to administer to pa-

tients in the recovery room. Petitioner felt that the revoking

of author: y to access the secured drug cabinet jeopardized

her position as attending LPN and endangered the lives of pa-

tients she was charged to provide care, since she regularly

worked alone in the recovery area. Thus, if a recovering pa-

tient incurred an adverse reaction, including cardiac arrest or

seizure, the patient could expire if there were a delay in ad-

ministering a prescribed drug.

The Agency alleges that on or about October 29, 1990,

petitioner refused an order to work in the G.I. Clinic. The

order directing her to work was supposed to have been given

by Nurse Vandergriff as instructed by Lt. Col. Oczkowski.

On October 30, 1990, Lt. Col. Oczkowski, Internal

Medicine Coordinator, entered petitioner’s office in a rude

manner making unfounded accusations and stating she had a

discussion with Marlene Vandergriff, R.N., that petitioner

had refused to work part time in G.I. on the date of October

29, 1990. Petitioner asked Lt. Col. Oczkowski to lower her

voice so that patients would not be disturbed, but the Lt.

continued and petitioner excused herself to complete serving

patients per doctor’s order. Petitioner subsequently went back

to her office and Lt. Col. Oczkowski again entered and stated

to petitioner that she will obey her command to work in the

G.I. Clinic on November 2, 1990, or “do not report for duty”.

Petitioner stated that she would not neglect her duties here on

verbal orders and asked Lt. Col. Oczkowski to please put her

statements about not reporting for duty in writing with Col.

Taylor's signature. Lt. Col. Oczkowski left the floor for a few

minutes and returned with the signature. At approximately

11:30 a.m., Lt. Col. Oczkowski returned to the clinic and

petitioner again requested her to be allowed to care for the

Gold Clinic patients who were waiting.

a

7

On November 2, 1990, as petitioner was in the treatment

room working, Lt. Col. Oczkowski entered and asked if peti-

tioner was going to work G.I.? Petitioner explained to Lt.

Col. Oczkowski that she tried working G.I. without the keys

to access the secured drug cabinet and could not respond to

doctor’s orders to provide needed drugs to patients and felt

uncomfortable for patient safety. Lt. Col. Oczkowski replied

to petitioner to go home and leave the building.

On November 6, 1990, while serving her five day suspen-

sion, petitioner was called at her residence by Lt. Col.

Oczkowski advising her that she was AWOL.

On return to her job after the enforced leave, petitioner ar-

rived at her duty station at 7:30 a.m. on November 9, 1990;

and she was approached by her first level supervisor, Maj.

Barrientez, who inquired whether or not she intended to

work in the G.I. Clinic that day. Petitioner responded that

she felt extremely uncomfortable attempting to perform her

duties without access to the secured medication cabinet, since

the lack of access deprived her of the ability to provide quali-

ty patient care. Petitioner explained to Maj. Barrientez that

she was not able to fully perform the job in the G.I. Clinic

unless able to address patient medical needs by having access

to physician prescribed medications. Maj. Barrientez

acknowledged the validity of petitioner’s position and stated

that she was not going to require her to work in the G.I.

Clinic without being able to administer prescribed medica-

tions to sedated patients.

On this same date, November 9, 1990, petitioner called

Congressman Hall’s office in Washington, D.C., spoke with

Ms. Randi Foster and requested assistance for her employ-

ment status. Ms. Foster informed petitioner that she had

spoken with Col. Cunningham and to call him for the

employment status. Petitioner called Col. Cunningham who

replied that he was not aware of this incident and would con-

tact Nursing Services. He then advised Mrs. Hughes to call

Jeff Van Vorhis about her employment status. Petitioner con-

tacted Jeff Van Vorhis, Civilian Employment Relations

8

Specialist, who informed petitioner that she was in an AWOL

status from November 2-9, 1990. Petitioner read the suspen-

sion notice to him, but he insisted that petitioner was AWOL.

On December 21, 1990, petitioner was given notice of a

proposed second suspension with 21 days to reply. During this

time, petitioner continued functioning in G.I. with extreme

fear for safety of the sedated patients.

On January 25, 1991, petitioner was given the decision to

suspend for the period of January 30 and 31, 1991. Not-

withstanding petitioner's written response, she was still

suspended.

Since this incident, Lt. Col. Oczkowski has been reassigned

and is no longer at WPAFB and petitioner continues to work

in recovery but not alone and with another employee who has

access to the secured drug storage cabinet.

9

REASONS FOR GRANTING THE WRIT

1. This case presents the opportunity for this Court to

consider the question whether an employee's right to due

process of law as guaranteed by the Federal Constitution is

violated when a granted security clearance has been revoked

in a non-military setting, a hospital environment.

2. Further, this case presents the opportunity for this

Court to consider a specific situation of agency alleged

discipline and suspension of an employee when there is the

lack of any wrong on the part of the employee and when that

employee has not been provided due process of iaw as

guaranteed by the Federal Constitution.

ARGUMENT

Summary

Petitioner contends that by the agency arbitrarily revoking

her authority to access the secured prescription drug area, this

action was in violation of her due process rights and tanta-

mount to a demotion contrary to AFR 168-50.

Further, petitioner contends that the agency violated AFR

40-750 by not strictly complying with the notice re-

quirements, since there was the failure to grant her, as an

employee of the U.S Department of the Air Force, the tradi-

tional seven (7) days notice and opportunity to respond prior

to her suspension. Petitioner's suspension was an adverse ac-

tion within the meaning of 5 C.F.R. Sec. 752.201-203.

5 U.S.C.A. Sec. 7701(a) provides that the MSPB has

jurisdiction to review an agency’s final decision upon the

agency violation of a rule. Further, pursuant to 5 C.F.R. Sec.

1201.3(a), the Board has jurisdiction to review agency actions

when the appeal is authorized by law, rule, or regulation. In

the instant case, petitioner contends the agency has violated

Department of Air Force Regulation 40-750 and Department

of Air Force Medical Center Regulation 168-50. 5 U.S.C.A.

10

7503 provides that an employee against whom a suspension

for 14 days or less is proposed is entitled to (1) advance writ-

ten notice (2) a reasonable time to respond orally or in writing

with affidavits or other documentary evidence (3) representa-

tion by attorney or representative (4) written decision of

specific reasons, therefore.

1. Revocation of Access

On October 1, 1990, petitioner’s second level supervisor,

without prior notice and opportunity to respond; terminated

petitioner’s access to the secured prescription drug area. In

Simmons v. Department of Navy, 49 M.S.P.R. 264 (1991);

see also Egan v. Department of Navy, 28 M.S.P.R. 509, 519

(1985), affirmed, 868 F.2d 1277 (Fed. Cir. 1988), and Jones,

48 M.S.P.R. 691-692, there, the Board held that the due

process rights that must be afforded to an employee whose ac-

cess to classified and secured areas has been suspended, in-

clude the following: (1) notice of the agency’s determination

regarding the employee’s access; (2) a statement of the reasons

for the determination; and (3) an opportunity to respond. In

the present case, petitioner never received notice nor oppor-

tunity to respond to the agency’s revocation of her access to

the secured prescription drug area.

In Egan, the Board discussed Rolles v. Civil Service Com-

mission, 512 F.2d 1319 (1975), stating that there the Court of

Appeals for the Distict of Columbia stressed that the only

issue before it was the legality of the employee's dismissal,

finding that the dismissal was repugnant to due process since

petitioner there was not afforded the opportunity to respond.

There as in the instant case, whereas the Board has no basis to

evaluate the validity of the herein agency’s revocation of peti-

tioner’s access to the secured prescription drug area, notice of

the agency’s determination, a statement of its reasons in sup-

port of the determination and an opportunity for this peti-

tioner to respond should have been provided. Rolles, supra.

See also DeSarno v. Department of Commerce, 761 F.2d 657,

660 (Fed. Cir. 1985); Doe v. Casey, 601 F. Supp., 581

———EE—E——

11

(D.D.C. 1985); Green v. McElroy, 360 U.S. 474, 502, 79 S.

Ct. 1400, 1416, 3 L.Ed.2d 1379 (1959), Cleveland Board of

Education v. Loudermill, __. U.S. , 105 S. Ct. 1487,

1495, 84 L.Ed.2d 494 (1985), citing Arnett v. Kennedy, 416

U.S. 134, 170-71, 94S. Ct. 1683, 1652, 40 L.Ed.2d 15 (1974).

2. Petitioner's Suspension

On October 2, 1990, petitioner's access to a secured

prescription drug area adjacent to the patient recovery room

was summarily revoked without notice, explanation, or op-

portunity to respond. Petitioner, a Licensed Practical Nurse,

was not required to work in the hospital recovery area daily,

but only when registered nurses had days off or otherwise

were not available; as such, petitioner substantially relied

upon having access to the secure prescription drug area to

properly provide medical needs of recovering patients. For

reason that petitioner concluded she would be held responsi-

ble if something went wrong in the recovery room as she

worked there due to not being able to access the secured

prescription drug area, she feared working there.

On October 31, 1990, petitioner was handed a conditional

statement, which essentially stated, without more, that if she

did not work the recovery room on November 2, 1990, she

would be sent home. Petitioner contends that this conditional

statement did not constitute the required notice for her

suspension since at the time received she had not committed

any wrongful act. Further, the language of the conditional

statement related to “prospective conduct” and not “past con-

duct”. Clearly, notice consistent with due process re-

quirements does not specify wrongful conduct which may or

may not occur. Upon refusing to work recovery for these

stated reasons on November 2, 1990, petitioner was summari-

ly sent home. Petitioner contends that because she was not af-

forded notice and opportunity to respond pursuant to 5

U.S.C.A. Sec. 7503, her Fifth and Fourteenth Amendment

rights were violated. Moreover, as an employee of the

Department of Air Force, WPAFB, Ohio, petitioner was en-

titled to the notice procedures set forth by the Department of

12

Air Force Regulations, Regulation 40-750, Section E. See Ap-

pendix C.

Under the provisions of these said regulations, petitioner

was entitled to (1) advance written notice with explanation,

(2) reasonable time to respond with affidavits or other

documentary evidence, (3) representation by attorney or

other representative, and (4) a written decision with specific

reasons therefore. Moreover, pursuant to AFR 40-750, Sec. E,

Department of Air Force employees are traditionally provid-

ed at least a seven (7) day notice prior to any suspension.

The Civil Service Reform Act of 1978 provides that a

federai employee has the right to appeal to the MSPB from

any action which is appealable to the Board under any law,

rule or regulation. 5 U.S.C. Section 7701(a) (1982). This Act

also sets forth certain adverse actions from which an

employee may appeal, including removal, suspension for

more than fourteen days, and reduction in pay. Further, the

Act sets forth the nature of these adverse actions, as defining

“suspension” as “placing an employee for disciplinary reasons

in a temporary status without duties or pay.” 5 U.S.C. Sec-

tion 7501(2), 7511(a)(1)(A), 7511(a)(2), and 7512(2). AFR

40-750.

In the instant case, petitioner, as an employee of the agen-

cy for some twenty-one (21) years, was told by her unit’s

supervisor without prior legal notice of suspension to leave the

agency's premises on November 2, 1990, for refusal to obey

the supervisor's order. Thereafter, petitioner was sent written

notice that she had been suspended. Petitioner remained off

her job through November 7, 1990. She received no pay for

this time away from the job. This adverse agency action was

clearly a suspension within the Civil Service Reform Act.

The Act also requires that in order for the suspension to be

appealable, it must have a disciplinary component. In the in-

stant case, petitioner was charged with having failed to carry-

out the orders of her unit supervisor to return to work in the

G.I. Clinic. Petitioner's failure to respond to the unit super-

13

visor’s order resulted in the supervisor instantly ordering her

to leave the agency’s premises, remaining off duty without

pay for some five (5) days. This suspension falls within the

normal meaning of discipline, as punishment intended as

sanction for improper conduct. 30 Comp. Gen. 342, 343-44

(1951).

Petitioner's suspension was without prior legal notice and

opportunity to respond, pursuant to the AFR 40-750, Section

E, 23(a)(2)(b). This regulation provides that the minimum

notice period for suspension of 14 days or less must not be less

than 24 hours. Further, within the Air Force branch, this

period is normally not less than 7 days. Moreover, pursuant to

AFR 40-750, Section E, 18(a) and (b), the written statement

of notice must be specific and include specific information

about the proposed agency’s action and reason therefore. Ap-

pendix C, at Paragraphs 18(a) and (b), and 23(a) and (b).

Petitioner’s suspension was instant upon her failure to comply

with the alleged legal order given by the unit supervisor on

November 2, 1990.

USAF MC Regulation 168-50 is the Department of Air

Force rule which is used by its Medical Service Units and

establishes procedures for the storage, distribution, ad-

ministration, and security of drugs. Pursuant to AFR 168-50

subparagraph items 3(e), 3(f)(2) and 6(c), in July, 1986, peti-

tioner was duly authorized as part of her job duties to access

the prescription drug storage unit while providing care as fur-

ther authorized by attending physician, for recovering pa-

tients. See Appendix B. No explanation was ever provided by

petitioner's unit supervisor as reason for the revocation of

petitioner’s access to the drug storage unit.

Petitioner requested a written explanation, but none was

provided then, nor has been provided to date.

AFR 168-50 does provide for maintaining security by users

or persons accessing the prescription drug unit. Specifically,

written records of individual access and use are required. No

14

complaint was provided that petitioner had in any way

breached the security requirements as an authorized person.

Because petitioner's authorized access is considered part of

her job duties, the denial of access and performance respon-

sibility is tantamount to her being demoted in job without

notice and opportunity to be heard, all contrary to the Civil

Service Reform Act.

15

CONCLUSION

The Merit Systems Protection Board has jurisdiction in pe-

titioner’s case for the reason that the agency failed to strictly

comply with AFR 40-750, by not providing the proper time in

giving notice to petitioner upon initially suspending petitioner

from her job. AFR 40-750 was promulgated to provide the

Air Force policy and principles for maintaining discipline and

for taking disciplinary and adverse actions, which provisions

are consistent with 5 U.S.C. Chapter 75, 5 C.F.R., Part 752

and DoD Directive 1400.14. AF Regulation 40-750.

Because the agency failed to strictly adhere to AFR 40-750,

Section E, Notice Requirements, the agency in fact violated

its rules, providing the basis for jurisdiction on appeal of its

decision to the MSPB. 5 C.F.R. 7701(a).

Further, the agency’s revocation of petitioner’s authority to

access the prescription drug storage unit resulted in due pro-

cess denial and petitioner’s demotion, all contrary to the Civil

Service Reform Act which the MSPB by law is granted

jurisdiction to review.

Respectfully submitted,

Herbert Creech, Esquire

1422 Chapel Street

Dayton, Ohio 45404

1-513-228-1086

APPENDIX A

ARBITRATION OPINION AND AWARD

In the Matter of Arbitration Between:

AIR FORCE LOGISTICS COMMAND

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFGE COUNCIL NO. 214

EXPEDITED ARBITRATION

(ARB WP-91-3)

Grievance of ALICE B. HUGHES

APPEARANCES:

For the Employer: Fred Hustad

Attorney/ Advisor

2750 ABW/JA

Wright-Patterson AFB, Ohio

45433-6000

For the Union: John Tornichio

Union Steward

AFGE Local No. 214

P.O. Box 1505

Fairborn, Ohio 45324

ARBITRATOR: W. Scott Thomson, P.O. Box 22268,

Louisville, Kentucky 40252-0268.

By the terms of the Agreement between Air Force Logistics

Command, Wright-Patterson Air Force Base, Ohio,

la

2a

hereinafter called “the Employer,” and American Federation

of Government Employees, AFGE Council No. 214,

hereinafter referred to as “the Union,” disputes between the

parties are to be settled in accord with the grievance and ar-

bitration procedure therein provided. Pursuant to such pro-

cedure W. Scott Thomson was selected by the parties as ar-

bitrator to hear a matter concerning a two (2) days’

suspension-discipline. A Hearing was held June 7, 1991, at

Wright-Patterson Air Force Base, Ohio, in which full and

equal opportunity was afforded the parties to make

statements and arguments, introduce evidence, and examine

and cross-examine witnesses.

STIPULATED ISSUE

Was the disciplinary action based on just cause?

OPINION

Grievant is Alice B. Hughes. She is represented by the

American Federation of Government Employees, AFGE

Council No. 214.

Grievant is a long-term employee. She has been employed

for twenty-one years. She has an excellent work record.

However, November 2, 1990, and November 9, 1990, she

refused a direct order to work in the Gastroenterology Clinic.

Her refusal to follow a direct order was admitted during

Hearing. She was suspended two days for these infractions.

It is regrettable the incidents occurred. Previously she had

access to the controlled drugs cabinet. She became highly

upset when she was informed she was no longer authorized to

“carry the keys to the cabinet.” Air Force regulation requires

special authority for a licensed practical nurse to have access

to the drug cabinet. Ms. Hughes became adamant that this

hampered the performance of her job. Accordingly, she re-

fused to work in the Gastroenterology Clinic without the

“keys to the drug cabinet.” Nevertheless, her refusal to obey a

3a

direct order was not warranted. Her refusal was a deliberate

act. I have no alternative but to deny the grievance.

AWARD

The grievance is denied.

/s) W. SCOTT THOMSON

Arbitrator

Date: June 14, 1991

4a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

DOCKET NUMBER

CH-0752-92-0473-I-1

DATE: July 23, 1992

ALICE B. HUGHES,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

Raymond W. O'Neal, Sr., Esquire, Dayton, Ohio, for the

appellant.

Charles A. Buenning, Jr., Esquire, Wright-Patterson Air

Force Base, Ohio, for the agency.

BEFORE

Howard J. Ansorge

Administrative Judge

INITIAL DECISION

INTRODUCTION

Alice B. Hughes is a Practical Nurse in the Medica! Clinic

at Wright-Patterson Air Force Base, Ohio. Ms. Hughes was

issued a 5-day suspension on October 31, 1990 and a 2-day

suspension on January 21, 199]. She appealed her suspension

to the Board on May 3, 1992. No hearing was held in this ap-

peal.

\

5a

For the reasons set forth below, this appeal is DISMISSED

for lack of jurisdiction.

JURISDICTION

The appellant seeks to appeal a 5-day suspension and a

2-day suspension. The appellant has the burden of establish-

ing by a preponderance of the evidence that the Board has

jurisdiction over her appeal. See 5 C.F.R. § 1201.56(a)(2)(i)

(1992). In her appeal, the appellant disputes the merits of the

charges upon which the agency based the suspensions; she

claims that the suspensions are excessively harsh given her 22

years of service; she asserts that the agency issued the suspen-

sions in violation of her due process rights; and she maintains

that she was suspended in reprisal for attempting to prevent

danger to the patients in the clinic.

Notwithstanding the appellant’s contentions, the Board’s

jurisdiction is limited to actions that are apyealable to the

Board by law, rule, or regulation. See 5 U.S.C.A. § 7701{a)

(West 1980). It is well settled that the Board does not have

jurisdiction over suspensions of 14 days or less. See, e.g., Har-

rison v. United States Postal Service, 26 M.S.P.R. 37, 39

(1985); 5 U.S.C.A. § 7501(2) (West 1980). Moreover, the

Board has no jurisdiction to review claims of reprisal in the

absence of an otherwise appealable matter. See, e.2..

Saunders v. Merit Systems Protection Board, 757 F.2d 1288,

1290 (Fed. Cir. 1985); Wren v. Department of the Army, 2

M.S.P.R. 1, 2 (1980), aff'd, 681 F.2d 867 (D.C. Cir. 1982).

Accordingly, I conclude that the Board has no jurisdiction

over this appeal.

Because the Board has no jurisdiction over this appeal, |

need not consider whether the appeal was timely filed.

DECISION

The appeal is DISMISSED.

FOR THE BOARD: /s/ Howard J. Ansorge

Administrative Judge

6a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DOCKET NUMBER CH075292047311

DATE: December 2, 1992

ALICE B. HUGHES,

Appellant,

Vv.

DEPARTMENT OF THE AIR FORCE,

Agency,

Raymond W. O'Neal, Sr., Esquire, Dayton, Ohio, for the ap-

pellant.

Charles A. Buenning, Jr., Esquire, Wright-Patterson Air

Force Base, Ohio, for the agency.

BEFORE

Daniel R. Levinson, Chairman

Antonio C. Amador, Vice Chairman

Jessica L. Parks, Member

ORDER

After full consideration, we DENY the appellant’s petition

for review of the initial decision issued on July 23, 1992,

because it does not meet the criteria for review set forth at 5

C.F.R. § 1201.115. After the close of the record on petition

for review, see 5 C.F.R. § 1201.114 (d), the agency submitted

a response to the petition for review; the Board has not con-

sidered this response because the agency has not shown good

cause for the delayed filing, see 5 C.F.R. § 1201.114 (f). This

is the Board’s final order in this appeal. The initial decision in

this appeal is now final. 5 C.F.R. § 1201.113(b).

initia il

Ta

NOTICE TO APPELLANT

You have the right to request the United States Court of

Appeals for the Federal Circuit to review the Board’s final

decision in your appeal if the court has jurisdiction. See 5

U.S.C. § 7703(a)(1). You must submit your request to the

court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than

30 calendar days after receipt of this order by your represen-

tative, if you have one, or receipt by you personally, which

ever receipt occurs first. See U.S.C. § 7703(b)(1).

FOR THE BOARD:

/s) ROBERT E. TAYLOR

Clerk of the Board

Washington, D.C.

8a

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL COURT

93-3129

Filed October 7, 1993

ALICE B. HUGHES,

Petitioner,

Vv.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

JUDGMENT

ON APPEAL from the Merit Systems Protection Board in

CASE NO(S). CH0752920473-I-1.

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

PER CURIAM (MICHEL, Circuit Judge, SMITH, Senior

Circuit Judge, and PLAGER, Circuit Judge):

AFFIRMED. Fed. Cir. R. 36.

ENTERED BY ORDER OF

THE COURT

/s/ Francis X. Gindhart,

Clerk

Dated October 7, 1993

ISSUED AS A MANDATE: October 28, 1993

9a

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

NOTICE OF ENTRY OF

JUDGMENT WITHOUT OPINION

JUDGMENT ENTERED: October 9, 1993

The judgment of the court in your case was entered today

pursuant to Rule 36. This Court affirmed the judgment or

decision that was appealed. None of the relief sought in the

appeal was granted. No opinion accompanied the judgment.

The mandate will be issued in due course.

Costs are taxed against the Petitioner(s) in favor of the

Respondent(s) under Rule 39. The party entitled to costs is

provided a bill of costs form and an instruction sheet with this

notice.

The parties are encouraged to stipulate to the costs. A bill

of costs will be presumed correct in the absence of a timely

filed objection.

Costs are payable to the party awarded its costs. If costs are

awarded to the government, they should be paid to the

Treasurer of the United States. Payment should be made to

counsel for the party awarded costs or, if the party is not

represented by counsel, to the party pro se. Payment of costs

should not be sent to the court. Costs should be paid prompt-

ly.

Exhibits and visual aids shall be promptly retrieved by the

party that lodged them with this court.

FRANCIS X. GINDHART

Clerk

ec: RAYMOND W. O’NEAL, SR.

ANITA MARSHALL

HUGHES V MSPB, 93-3129

(MSPB — CH07529204731-1)

10a

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

93-3129

ALICE B. HUGHES,

Petitioner,

Vv

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

JUDGMENT

(Filed January 14, 1994)

Upon further consideration, having learned that the peti-

tioner was erroneously advised of the date on which the

original judgment was entered, it is ORDERED AND AD-

JUDGED:

The judgment entered on October 7, 1993, is withdrawn,

and the mandate issued on October 28, 1993 is recalled.

On appeal from the Merit Systems Protection Board, in

case no. CH0752920473-I-I, the cause having been heard and

considered, it is ordered and adjudged:

PER CURIAM (MICHEL, Circuit Judge, SMITH, Senior

Circuit Judge, and PLAGER, Circuit Judge):

AFFIRMED. Fed. Cir. R. 36.

ENTERED BY ORDER OF THE COURT

/s) FRANCIS X. GINDHART, Clerk

January 14, 1994

ISSUED AS A MANDATE: January 14, 1994

lla

APPENDIX B

DEPARTMENT OF THE AIR FORCE

USAF Medical Center Wright-Patterson (AFLC)

Wright-Patterson AFB OH 45433-5300

USAF MC REGULATION 168-50

31 March 1989

(10) Vials of reconstituted drugs must be labeled with the

date of reconstitution (day, month, year), strength per unit

volume, and the initials of the person preparing the product.

Multi-dose vials must be dated and initialed when initially

opened. All reconstituted products and multi-dose vials must

be discarded no later than 30 days from the date on the label,

or sooner if specifically indicated. Allergen extracts are the

only products which may be retained up to 90 days after

reconstitution or initial opening.

3. DRUG DISTRIBUTION:

a. When possible, a pharmacist will review the

prescriber’s original order, or a direct copy, before the initial

dose of medication is dispensed.

b. All pharmacy prepackaged drug containers will be

labeled by the pharmacy with the drug’s generic and/or trade

name, strength, control nummber, and special storage of

handling instructions. Under no circumstances will medica-

tions be transferred from one bottle to another by non-

pharmacy personnel

c. All drugs, including intravenous admixtures (IVs)

ordered for individual inpatients, will be returned to the in-

patient pharmacy as soon as the order has been discontinued.

12a

d. When a patient is transferred from one ward to

another, medications, including intravenous admixtures,

should be transferred with the patient.

e. Only qualified medical personnel assigned to the USAF

Medical Center Wright-Patterson (WPMC), may pick up

medication from the inpatient pharmacy for delivery to the

wards and clinics. Qualified means military personnel work-

ing as permanent party members of the WPMC staff, or

civilian employees working at WPMC in direct patient care

positions.

f. The following personnel may order and receive bulk

controlled and regular drugs from the inpatient pharmacy:

(1) In keeping with the intent of AFR 168-4, paragraph

7-25(e), it is necessary that either a charge nurse or a

delegated registered nurse, physician, or dentist sign the bulk

order form when requesting and picking up Schedule II, III,

and IV drugs for wards and clinics. An AF Form 579, Con-

trolled Substances Register, must also be presented when

picking of these bulk drugs. Personnnel, other than those

mentioned above, are not permitted to sign order forms or to

pick up bulk Schedule II, IiI, and IV drugs.

(2) When ordering bulk Schedule V drugs, the same in-

dividuals mentioned above — charge nurse or a delegated

registered nurse, physician, or dentist — Must sign the bulk

order form. Other medical personnnel, when authorized by

letter from the respective department to the Chairperson,

Department of Pharmacy, and on file in the pharmacy vault,

will be permitted to sign for receipt and pick up of these bulk

drugs. Such personnel should be of an NCO status or higher.

(3) When ordering non-controlled bulk drugs, a charge

nurse or a delegated registered nurse, physician, or dentist,

must sign the bulk order form. Other medical personnel, with

no authorization by letter required, will be permitted to pick

up and sign for receipt of non-controlled drugs.

g. When an announcement is received that a drug is to be

suspended, recalled, or destroyed, take the following action:

(1) Pharmacy personnel will remove the recalled drug

from the wards and clinics. During evenings, weekends, or

l3a

holidays, nursing units will be asked to return the item to the

inpatient pharmacy and exchange if for the new merchan-

dise.

(2) If warranted by the nature of the recall, contact all

patients with current prescriptions for the drug on file in the

pharmacy computer. Advise them by telephone or mail to

return the medication to the pharmacy as soon as possible.

Maintain the computer file to record patients contacted and

return of the medication. :

4. DRUG ADMINISTRATION:

a. Policies and Procedures:

(1) Drugs will be administered only upon the order of an

authorized prescriber. Proper identification of the patient

will be made prior to administration.

(2) All medications should be administered by ap-

propriately authorized personnel as soon as possible after the

dose has been prepared, particularly a medication prepared

for parenteral administration. Except where a unit dose drug

distribution system is in use, a drug should be administered

by the person who prepared the dose.

5. AUTOMATIC STOP ORDERS:

c. Anticoagulants are ordered for a specified period of

time, ordinarily determined on the basis of the monitoring

laboratory studies.

d. Orders for oxytoxics should be written for a specified

period of time.

e. All standing drug orders are automatically cancelled

when a patient undergoes a major surgical procedure.

f. Nursing is responsible for establishing a uniform system

for notifying the responsible practitioner of the impending ex-

piration of a drug order so that the practitioner may deter-

mine whether the drug administration is to be continued or

altered. The use of colored tabs or labels is favored for a

uniform, hospital-wide stop order notification system.

l4a

6. DRUG SECURITY:

a. Medication cabinets and drug storage areas are to re-

main locked when not in use by authorized personnel. If the

key to the narcotics cabinet is broken, lost or stolen, Facility

Managment will be notified, during normal duty hours, in

order to replace the key/lock. If the key is lost, broken, or

stolen after normal duty hours, it will be brought to the at-

tention of the daytime shift by the shift leader/charge nurse.

b. Each ward or section at each shift change will have a

physical count of all Schedule II, III, and IV controlled drugs

accomplished by two nurses, the registered nurse coming on

duty and the registered nurse going off duty. An AF Form

578, Data Record, should be used to document the count.

Discrepancies will be researched immediately, and all errors

corrected. Discrepancies which cannot be rectified will be

reported to the appropriate nurse supervisor.

c. Registered nurses, specifically designated licensed prac-

tical nurses, dentists, and physicians will be allowed to carry

keys to medication cabinets and narcotic cabinets.

d. The following documentation must be created when

Schedule II, III, or IV controlled substances are dispensed

from or administered in the Emergency Room or Outpatient

Clinic:

(1) An entry must be made by the practitioner, on SF

Form 600, Health Record — Chronological Record of

Medical Care, or SF 558, Record of Emergency Care and

Treatment.

(2) The required information must be entered on the ap-

propriate AF Form 579, Controlled Substances Register, in-

cluding the last four digits of the sponsor's social security ac-

count number in the column entitled, “Register Number.”

(3) An AF Form 781, Multiple Item Prescription, must be

prepared by the practitioner, providing all required informa-

tion. The person administering or dispensing the medication

must then annotate the prescription by initialing it and

recording the date and actual amount administered or

l5a

dispensed. These prescriptions wili then be turned into the

pharmacy when replacement medications are ordered.

e. Maintenance of Controlled Drug Records:

(1) All Schedule II, II, and IV drugs and other drugs

specified by the Pharmacy and Therapeutics Committee will

be maintained on AF Form 579. The registered nurse ad-

ministering the controlled drug to the patient is responsible

for making the required entry on the AF Form 579. The

charge nurse for each ward is responsible for ensuring that

the AF Form 579 is properly maintained.

(2) The pharmacy will issue the using activity a separate

numbered AF Form 579 for each Schedule II, III, and IV

controlled drug. The registered nurse from the using activity

will initial the pharmacy’s control log upon receipt and again

when returning the completed AF Form 579 to the phar-

macy.

(3) New AF Forms 579 will be issued as needed. Nursing

personnel will ensure the drug balance and control number

from the preceding form are brought forward to the new

sheet. They will also ensure that the register number of the

new form is recorded on the preceding form. Pharmacy per-

sonnel will also ensure these transfers of drug balances and

register numbers are accomplished.

(4) AF Forms 579 are accountable documents and may

not be transferred to another using activity or discarded.

(5) Pharmacy personnel will post all issues of controlled

drugs on the AF Form 579, with the nurse initialing to in-

dicate receipt of the drugs (see Atch 1, example B).

l6a

APPENDIX C

DEPARTMENT OF THE AIR FORCE

Headquarters US Air Force

Washington DC 20330

AF REGULATION 40-750

23 July 1982

Civilian Personnel

DISCIPLINE AND ADVERSE ACTIONS

This regulation establishes Air Force policy and principles for

maintaining discipline and for taking disciplinary and adverse

actions. It implements the requirements of 5 U.S.C. Chapter

75, 5 C.F.R., Part 752, and DOD Directive 1400.14, Person-

nel Actions affecting Key Personnel. It applies to employees,

supervisors, civilian personnel officers, and other manage-

ment officials of the Air Force.

This publication is affected by the Privacy Act of 1974. Each

form that is subject to AFR 12-35, Air Force Privacy Act Pro-

gram, and required by this publication, contains a Privacy

Act Statement either incorporated in the body of the docu-

ment or in a separate statement accompanying each docu-

ment. Authority to obtain this information is Executive Order

9397. It prescribes records authorized by 5 U.S.C. Chapter 75

and Title 2, Public Law 95-454. The authority for the

maintenance of the system of records required by this docu-

ment is 5 U.S.C. 1302; 2951, 3301, and 3302; E.O. 10577 and

E.O. 11491; 3 C.F.R. 1954-1958 Comp. page 218 and 3

C.F.R. 1966-1970 Comp. page 861.

* a *

Section E—Notices of Proposed Adverse Action, Notices of

Final Decision, and Related Requirements

18. Notice of Proposed Adverse Action. The purpose of this

notice is to give the employee a fair opportunity to defend

himself or herself against the proposed action. The notice

17a

must make it clear that the action is proposed but not yet

decided. A statement that the notice is of a proposed action

and that any answer will be considered before a decision is

made is sufficient (see b(5) below).

a. The notice of proposed action must include:

(1) The proposed action, for example, “It is proposed to

suspend you for 5 calendar days” (see paragraph 24).

(2) The specific reason(s) for the proposed action (see

paragraphs 17b and 25).

(3) For furlough only. The basis for selecting a particular

employee for furlough when some but not all employuees in a

given competitive level are being furloughed.

(4) A statement of the employee's right to review the

material relied on to support the reason(s) for action given in

the notice and, at management’s discretion, either: (a) a

statement of what arrangements must be made to review the

supporting material, or (b) a copy of the supporting material

enclosed with the notice and a reference to the enclosed

material (see paragraph 27).

(5) Signature of an official who has authority to propose

the action (see paragraph 6).

(6) The date of the notice of proposed action. The notice

is dated before delivery to the employee.

b. the notice of proposed action should but is not required

to include:

(1) The duration of the notice period (see paragraph 23).

(2) A statement that the employee has a right to answer

orally or in writing or both and to furnish affidavits and other

documentary evidence in support of the answer (see

paragraph 30).

(3) The amount of time allowed for the employee to

answer and a statement that consideration will be given to ex-

tending the time if the employee requests an extesnion and

provided sufficient reason for the request (see paragraph 30a).

(4) An identification of the person or office to receive any

written answer; identification of the person who will receive

any oral answer. The person designated must be an in-

dividual who has authority either to make or recommend a

18a

final decision on the proposed adverse action (see paragraph

28).

(5) A statement that the action is proposed but not yet

decided; that the employee’s answer(s) made to a designated

official will be considered; and that whether or not the

employee answers, a final written decison will be issued (see

paragraphs 18 and 31).

(6) The amount of offical time (if otherwise in an active

duty status) allowed for the employee to review the material

relied on to support the proposed action, to secure affidavits

and other documentary material, and to prepare answer or

answers to the notice; statement of how to arrange for the use

of official time (identify the person with whom arrangements

should be made); statement that consideration will be given

to extending the time if the employee requires an extension

and provides sufficient reason for the request (see paragraph

30a).

(7) A statement of the employee’s right to representation

(see paragraph 29).

(8) The name, location, and phone number of the person

in the CCPO desiganted to provide assistance.

(9) The employee’s duty status during the notice period.

23. Advance Notice Period:

a. Minimum Notice Period:

(1) There is no specific notice period for an oral ad-

monishment or a reprimand.

(2) The minimum notice period for a suspension of 14

days or less must not be less than 24 hours. Within the Air

Force, this period is normally not less than 7 days.

(3) The minimum notice period for an adverse action

under paragraphs 16 and 17 is 30 days, except as provided in

paragraph 16e.

b. The time periods specified in paragraph a are

minimum periods and, although longer periods are not re-

a cnieieieeieneaiiameneieteacaaaniaie aan eeeaiel

19a

quired by this document, additional time should be taken if

needed to satisfy all applicable requirements. There is no re-

quirement that a tentative date for action be set or implied at

the time the notice of proposed action is issued. It is sufficient

to state in the notice of proposed action that the adverse ac-

tion taken, if any, will be made effective “not earlier than

(specify the number of days of advance notice) days from the

date you receive this notice.”

24. Identification of the Proposed Action. State specifically

the most severe action proposed. Suspensions, other than

those of indefinite duration, are stated in terms ot the exact

number of calendar days. A proposed action may later be

reduced, but a more severe action cannot be taken unless the

employee is given a new advance notice to propose the more

severe action, proposing the most severe action under all cir-

cumstances on the expectation that it may later be reduced is

not recommended. When reduction in pay is involved, state

the exact salary the employee is to receive. For change to

lower grade, state the exact position title and grade the

employee will receive. For change to lower grade within or

between pay systems when there is not entitlement to grade

retention, add a statement as to whether or not the employee

is entitled to pay retention.

25. Specific Reasons (Includes Causes of Action). The notice

of proposed action informs the employee of all the specific

reasons relied on to support the proposed action. (For

reprimands, this information is included in the notice of

reprimand.) It is not necessary to include every reason that

might have been used to support managment’s action.*The

current cause of action normally is covered in the introduc-

tory paragraph of the notice of proposed action with support-

ing reasons (such as prior offenses) addressed in separate

paragraphs. Causes for adverse action may be reasons per-

sonal to the employee such as on or off-the-job misconduct,

delinquency, or physical or mental inability to perform the

20a

duties of the position. Causes also may be impersonal reasons

such as the application of new or revised classification stan-

dards or the need to correct a merit promotion error. The

management official who initiates the action is responsible for

identifying and properly stating the cause(s) of action.

26. Addition of Reasons. If a notice is amended to add fur-

ther reasons for action, management must make sure that the

employee is given sufficient time to answer the added reasons

and that no action is taken until the required number of days

of advance notice has elapsed from the date the added reasons

are submitted to the employee.

27. Material Relied on To Support the Action. Management

assembles the material relied on to support the reason(s) for

the proposed action and makes the file available to the

employee. This material may include, but is not limited to,

statements of witnesses, documents, investigative reports or

extracts from the reports, and relevant material concerning

any previous record or action relied upon as part of the basis

for the current action. A copy of the supporting material

may, at management’s discretion, be enclosed with the notice

of proposed action. If this is done, the notice includes a state-

ment that a copy of the material is enclosed. Since all suppor-

ting material must be open to review by the employee, the

employee’s representative, or the employee’s designated

physician under 5 C.F.R. 297.204(c), material which cannot

be shown to these individuals because its disclosure would

violate a pledge of confidence, or because it is in some way

restricted or classified, cannot be used to support reasons for

the action. If management wishes to use such material, it

must obtain it in a form which can be made available for the

employee’s review. See FPM Chapter 752, Subchapter 3.

i — EEO EO eaVAO eee me > as a