                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                     2014 MSPB 56

                            Docket No. SF-0752-14-0199-I-1

                              Patrick G. Hollingsworth,
                                       Appellant,
                                            v.
                            Department of the Air Force,
                                        Agency.
                                      July 23, 2014


           Patrick G. Hollingsworth, North Las Vegas, Nevada, pro se.

           Basil R. Legg, Joint Base Andrews, Maryland, for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     affirmed his removal for tardiness. Because the agency failed to prove that the
     appellant was tardy, we REVERSE the initial decision.     The removal is NOT
     SUSTAINED.

                                    BACKGROUND
¶2         The appellant was a GS-05 Secretary (Office Automation) for the agency.
     Initial Appeal File (IAF), Tab 1 at 2, Tab 4 at 11. Effective November 22, 2013,
     the agency removed him on a charge of tardiness based on a total of 7 hours and
                                                                                             2

     30 minutes of absence without leave (AWOL) incurred during four separate
     instances between September 6 and October 7, 2013. IAF, Tab 4 at 11-13, 24-25.
     In arriving at the removal penalty, the deciding official considered, among other
     things, the appellant’s substantial history of progressive discipline for
     attendance-related problems. Id. at 12, 15, 26.
¶3         The appellant filed a Board appeal and waived his right to a hearing. 1 IAF,
     Tab 1 at 3-4.     The administrative judge affirmed the removal on the written
     record. IAF, Tab 10, Initial Decision (ID) at 1, 14. He found that the appellant
     was scheduled to report for duty at 8:30 a.m., but he reported 1 hour late on
     September 9, 2013, 2 hours late on September 13, 2013, and 2 hours late on
     October 7, 2013. ID at 4-5; IAF, Tab 9 at 22-23. The administrative judge also
     found that the appellant would have had to report at 8:00 a.m. on September 6,
     2013, in order to meet his 80-hour requirement for the pay period, and that the
     appellant reported 30 minutes late on that date. ID at 4; IAF, Tab 9 at 22. The
     administrative judge therefore sustained the charge. 2 ID at 5.

                                           ANALYSIS
¶4         An agency is not required to affix a label to a charge but may simply
     describe actions that constitute misbehavior in narrative form in its charge letter;
     however, if the agency chooses to label an act of alleged misconduct, then it must


     1
       In addition to his removal, it appears that the appellant attempted to challenge his
     prior 1-, 5-, and 14-day suspensions. IAF, Tab 1 at 4, Tab 4 at 35-36, 42-43, 49-50.
     None of these actions is directly appealable to the Board because the Board’s chapter 75
     jurisdiction extends only to suspensions of more than 14 days. 5 U.S.C. § 7512(2);
     Stewart v. Department of Defense, 82 M.S.P.R. 649, ¶ 15 (1999).
     2
       Although the administrative judge found that the appellant was tardy for a total of
     5 hours and 30 minutes rather than the 7 hours and 30 minutes that the agency specified
     in its charge, he did not find this discrepancy to be material. ID at 5; IAF, Tab 4 at 24;
     cf. Senior v. U.S. Postal Service, 85 M.S.P.R. 283, 289 (2000) (the Board may sustain a
     charge of AWOL even when the agency fails to prove that the appellant was AWOL for
     the entire period).
                                                                                       3

     prove the elements that make up the legal definition of the charge, if any. Otero
     v. U.S. Postal Service, 73 M.S.P.R. 198, 202 (1997). In this case, the agency
     charged the appellant with “tardiness.” IAF, Tab 4 at 24. The Board has not
     established the elements for a charge of tardiness. However, it is not a generic
     charge such as “improper conduct” or “conduct unbecoming” that does not
     require specific elements of proof.       Cf. Canada v. Department of Homeland
     Security, 113 M.S.P.R. 509, ¶ 9 (2010) (a charge of “improper conduct” or
     “conduct unbecoming” has no specific elements of proof; it is established by
     proving that the employee committed the acts alleged in support of the broad
     label).     A plain and ordinary understanding of the term “tardiness” implies
     unexcused lateness.      Merriam–Webster’s Collegiate Dictionary 1202 (10th ed.
     2002) (to be tardy is to be “delayed beyond the expected or proper time”).
¶5             In this case, the administrative judge implicitly analogized the charge of
     tardiness with a charge of AWOL. ID at 3. He found that to prove a charge of
     tardiness, the agency must show that: (1) the employee was scheduled for duty;
     (2) the employee was late for duty for the time charged; and (3) either the
     employee’s absence was not authorized or his request for leave was properly
     denied. ID at 3; cf. Boscoe v. Department of Agriculture, 54 M.S.P.R. 315, 325
     (1992) (to prove an AWOL charge, an agency must show that the employee was
     absent from duty, and either that his absence was not authorized or that his
     request for leave was properly denied).             Neither party challenges the
     administrative judge’s construction of the charge, and we agree that it is
     appropriate.      It is consistent with the Federal Circuit’s construction of a
     “tardiness” charge in Bryant v. National Science Foundation, 105 F.3d 1414,
     1416-17 (Fed. Cir. 1997), and the Board’s construction of the same in Mahnken v.
     U.S. Postal Service, 34 M.S.P.R. 1, 3-5, aff’d, 835 F.2d 871 (Fed. Cir. 1987)
     (Table). It is also consistent with the general principle that an agency cannot
     discipline an employee for approved absences. See Cook v. Department of the
     Army, 18 M.S.P.R. 610, 611-12 (1984); Watson v. U.S. Postal Service,
                                                                                     4

     13 M.S.P.R. 56, 58 (1982). The appellant does not dispute his arrival times on
     the days in question or directly challenge the appropriateness of the removal
     penalty for the sustained charge. He disputes only whether the charge should be
     sustained at all—specifically, whether the arrival times constituted tardiness
     within the parameters of his flexible work schedule.
¶6         The administrative judge adjudicated this issue as an affirmative defense of
     harmful error or action taken not in accordance with the law, for which the
     appellant bears the burden.     ID at 6-11; IAF, Tab 7 at 4-5; see 5 U.S.C.
     § 7701(c)(2)(A), (C); 5 U.S.C. § 1201.56(a)(2)(iii). However, we conclude that it
     is better construed as an argument that the agency failed to meet its burden of
     proving an element of its charge, i.e., that the appellant was scheduled to report
     for duty before the arrival times at issue.   See 5 U.S.C. § 7701(c)(1)(B) (an
     agency bears the burden of supporting a chapter 75 adverse action by
     preponderant evidence); 5 C.F.R. § 1201.56(a)(1)(ii) (same).
¶7         As explained above, the only dispute in this case pertains to whether the
     appellant was required to be on duty during the periods for which the agency
     carried him in AWOL status. For the reasons explained below, we find that the
     agency failed to prove that he was.
¶8         The parties agree that the appellant was subject to a “Maxiflex” schedule.
     IAF, Tab 8 at 4, Tab 9 at 5, 21. The Department of Defense (DOD) defines such
     schedules as follows:
              Maxiflex. Maxiflex is a flexible work schedule that contains core
           hours on fewer than 10 work days in the biweekly pay period and in
           which an employee has a basic work requirement of 80 hours for the
           biweekly pay period. The employee may vary the number of hours
           worked on a given workday or the number of hours each week,
           within the limits established for the organization.
                                                                                             5

      DOD Financial Management Regulation (FMR) 7000.14-R, Volume (Vol.) 8,
      Chapter (Ch.) 2 at 8 (June 2013). 3       One limit that the agency placed on the
      appellant’s schedule was that he needed to perform all of his work between 7:00
      a.m. and 5:00 p.m., Monday through Friday. IAF, Tab 8 at 15, Tab 9 at 21.
      Although the appellant alleges that this limitation violated the applicable
      collective bargaining agreement and OPM’s regulations regarding flexible
      schedules, IAF, Tab 1 at 6, we find that it is consistent with the agency’s
      regulation regarding Maxiflex schedules, with OPM’s Handbook on Alternative
      Work Schedules, and with the provisions of the applicable collective bargaining
      agreement recognizing management’s authority to “stabilize employees’ work
      schedules within the administrative work week,” IAF, Tab 9 at 26. We find no
      basis to conclude that this limit on the appellant’s work schedule was improper.
¶9          The agency also argues that the appellant was required to report for duty no
      later than 8:30 a.m. each day because that is the latest that he could arrive at work
      and complete an 8-hour day with a 30-minute lunch break by 5:00 p.m. IAF,
      Tab 9 at 9, 21. As explained above, the tardiness charge was premised, in large
      part, on this 8:30 a.m. reporting time.       IAF, Tab 4 at 24.      For the following
      reasons, we find that the agency failed to establish by preponderant evidence that
      the appellant was required to report to work by 8:30 a.m.
¶10         We agree with the appellant that the agency failed to show that it
      designated “core hours” for his work schedule. Petition for Review (PFR) File,
      Tab 1 at 5.      Under the Office of Personnel Management’s Handbook on

      3
        Although this is a DOD regulation, it purports to apply to all entities organized under
      the DOD, including the appellant’s employing agency, the Department of the Air Force.
      DOD FMR 7000.14-R, Introduction at 3. Neither party disputes the applicability of this
      regulation. See IAF, Tab 9 at 21. The definition of a Maxiflex schedule in the DOD
      FMR is the same as that in the Office of Personnel Management’s (OPM) Handbook on
      Alternative    Work      Schedules,     http://www.opm.gov/policy-data-oversight/pay-
      leave/reference-materials/handbooks/alternative-work-schedules/ (last visited July 7,
      2014).
                                                                                           6

      Alternative   Work    Schedules,    http://www.opm.gov/policy-data-oversight/pay-
      leave/reference-materials/handbooks/alternative-work-schedules/,        “core   hours”
      are “[t]he time periods during the workday, workweek, or pay period that are
      within the tour of duty during which an employee covered by a flexible work
      schedule is required by the agency to be present for work.”          Nowhere in the
      agency’s submissions do the words “core hours” appear. Arguably, under the
      agency’s theory of the case, the appellant had de facto core hours of 8:30 a.m. to
      3:30 p.m. because he would always need to be present during these times in order
      to complete an 8-hour workday within the hours of 7:00 a.m. and 5:00 p.m.
      However, this is inconsistent with the agency’s definition of “Maxiflex,” which
      provides that such schedules contain core hours on fewer than 10 work days in
      the biweekly pay period. DOD FMR 7000.14-R, Vol. 8, Ch. 2 at 8. This is also
      inconsistent with how the agency treated the appellant’s attendance during the
      pay period spanning August 25 through September 7, 2013. After he worked just
      7 hours and 30 minutes on September 5, 2013, the agency charged him AWOL
      only when he failed to make up the deficiency by the end of the pay period. IAF,
      Tab 4 at 62-63, Tab 9 at 22.
¶11         Furthermore, the two agency memoranda purporting to inform the appellant
      of his work schedule are confusing at best. The first, dated January 17, 2012,
      states that “Maxiflex allows flexible start/stop times,” and that the appellant’s
      “Current Work Schedule is [8:30 a.m.] to [5:00 p.m.] with 30 minute lunch.” 4
      IAF, Tab 8 at 14. This memorandum is internally contradictory because it states
      that the appellant has flexible start and stop times but also appears to set forth a
      fixed work schedule.      Id.   It is also inconsistent with a February 1, 2013



      4
       The record also contains two notices of proposed suspension and a progress review
      worksheet that similarly state that the appellant’s “normal” or “current” work schedule
      was 8:30 a.m. to 5:00 p.m. IAF, Tab 4 at 31, 37, 53.
                                                                                          7

      memorandum, which states only that the appellant will “normally” work an
      8-hour day within the hours of 7:00 a.m. and 5:00 p.m. Id. at 15.
¶12         Based on this confusing and contradictory evidence and the agency’s
      failure to show that it designated any core hours for the appellant, we find that it
      failed to show that he was scheduled to report for duty at 8:30 a.m. each day as
      alleged. Because the agency failed to show that the appellant was scheduled to
      report for duty by a specific time, we find that it failed to prove that the appellant
      was tardy on September 9, 2013, September 13, 2013, or October 7, 2013. IAF,
      Tab 4 at 24.
¶13         The agency’s theory of tardiness for September 6, 2013, is somewhat
      different. That was the last date of the 80-hour pay period, and the appellant had
      only accounted for 71 hours and 30 minutes of work and leave leading up to that
      date. Id. at 62-63; IAF, Tab 9 at 22. Thus, the agency reasons that the appellant
      would have had to arrive at work no later than 8:00 a.m. in order to complete
      8 hours and 30 minutes of work by 5:00 p.m. and to meet his 80-hour pay period
      requirement. IAF, Tab 9 at 22. The appellant failed to meet this requirement and
      was charged AWOL for 30 minutes because he did not report until 8:37 a.m.
      IAF, Tab 4 at 62, Tab 9 at 22.
¶14         We disagree with the agency’s theory.         First, as explained above, the
      agency failed to establish that the appellant had any particular time, scheduled in
      advance, by which he was required to report to work. The practical matter of
      having to report at 8:00 a.m. in order to log 8 hours and 30 minutes of work time
      on a given date does not equate to being scheduled to report at that time. Second,
      we disagree with the basic premise that the appellant failed to meet his 80-hour
      pay period requirement because he was “late” for work 1 day.           Although the
      appellant could have met his 80-hour requirement by working from 8:00 a.m. to
      5:00 p.m. on September 6, 2013, he could have met the requirement in other ways
      as well, such as working more hours on another day or requesting and obtaining
      leave to cover the deficiency.     In other words, the appellant fell short of his
                                                                                           8

      80-hour requirement not because of his arrival time on the last day of the pay
      period but because of the sum of his actions throughout the entire pay period. We
      therefore find that the appellant was not scheduled to report for duty at 8:00 a.m.
      on September 6, 2013, and, consequently, that the agency failed to show that he
      was tardy on that date.
¶15         This case is not about whether the agency has the authority to set the
      appellant’s work schedule or to place limits on any flexible schedule. 5 Rather,
      this case concerns what schedule the agency actually sets for the appellant. As
      explained above, the agency failed to provide sufficient evidence for us to make a
      finding on the issue.     Supra ¶¶ 10-12.     The agency itself does not seem to
      comprehend the appellant’s work schedule clearly, as it submitted evidence
      showing variously that the appellant was scheduled to work from 8:30 a.m. to
      5:00 p.m. every weekday, that he was scheduled to work 8 hours per day any time
      between 7:00 a.m. and 5:00 p.m. each weekday, and that he was scheduled to
      complete 80 hours of work in each biweekly pay period as long as he did so on
      weekdays between 7:00 a.m. and 5:00 p.m. Supra ¶¶ 8-12. Also, as explained
      above, the agency’s charge appears to be premised on two conflicting theories of
      what the appellant’s work schedule was.        Supra ¶ 10.    For these reasons, the
      charge and the removal are not sustained.

                                             ORDER
¶16         We ORDER the agency to retroactively cancel the appellant’s removal and
      to restore the appellant effective November 22, 2013.          See Kerr v. National



      5
        Because we reverse the removal on other grounds, we do not reach the appellant’s
      argument that, because he had a Maxiflex schedule, designation of his absences due to
      tardiness as AWOL was coercion that was prohibited by 5 U.S.C. § 6132. PFR File,
      Tab 1 at 5-6. Under that provision, an employee may not intimidate, threaten, or coerce
      another employee based on his use of a flexible schedule as provided for in chapter 61
      of Title 5.
                                                                                          9

      Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984).            The agency must
      complete this action no later than 20 days after the date of this decision.
¶17         We also ORDER the agency to pay the appellant the correct amount of
      back pay, interest on back pay, and other benefits under the Back Pay Act and/or
      Postal Service Regulations, as appropriate, no later than 60 calendar days after
      the date of this decision. We ORDER the appellant to cooperate in good faith in
      the agency’s efforts to calculate the amount of back pay, interest, and benefits
      due, and to provide all necessary information the agency requests to help it carry
      out the Board’s Order. If there is a dispute about the amount of back pay, interest
      due, and/or other benefits, we ORDER the agency to pay the appellant the
      undisputed amount no later than 60 calendar days after the date of this decision.
¶18         We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and to describe the
      actions it took to carry out the Board’s Order. The appellant, if not notified,
      should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶19         No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the office that issued the initial decision in this appeal if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
¶20         For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
                                                                                    10

      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.
¶21         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                            NOTICE TO THE APPELLANT
                        REGARDING YOUR RIGHT TO REQUEST
                            ATTORNEY FEES AND COSTS
            You may be entitled to be paid by the agency for your reasonable attorney
      fees and costs. To be paid, you must meet the requirements set out at Title 5 of
      the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
      or 38 U.S.C. § 4324(c)(4).       The regulations may be found at 5 C.F.R.
      §§ 1201.201, 1202.202, and 1201.203.           If you believe you meet these
      requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
      DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
      motion with the office that issued the initial decision on your appeal.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. 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 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and
                                                                                 11

that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
         If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
         If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
                                                      DFAS CHECKLIST
                                     INFORMATION REQUIRED BY DFAS IN ORDER
                                       TO PROCESS PAYMENTS AGREED UPON IN
                                      SETTLEMENT CASES OR AS ORDERED BY THE
                                         MERIT SYSTEMS PROTECTION BOARD


       AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS
                PAYMENTS AGREED UPON IN SETTLEMENT CASES
      CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL OFFICE
                 VIA COMMAND LETTER WITH THE FOLLOWING:

    1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
           and POC to send.
    2. Statement that employee was counseled concerning Health Benefits and TSP and the
           election forms if necessary.
    3. Statement concerning entitlement to overtime, night differential, shift premium,
           Sunday Premium, etc, with number of hours and dates for each entitlement.
    4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
           System), a statement certifying any lump sum payment with number of hours and
           amount paid and/or any severance pay that was paid with dollar amount.
    5. Statement if interest is payable with beginning date of accrual.

    6. Corrected Time and Attendance if applicable.

              ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order.

2. Corrected or cancelled SF 50's.

3. Election forms for Health Benefits and/or TSP if applicable.

4. Statement certified to be accurate by the employee which includes:
     a. Outside earnings with copies of W2's or statement from employer.
      b. Statement that employee was ready, willing and able to work during the period.
      c. Statement of erroneous payments employee received such as; lump sum leave, severance
      pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
      Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
                                                                                               2




NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
