Penalty of Removal for Falsification of Documents Charge Reasonable, Board holds

The penalty of removal following a charge of falsification of documents is reasonable because of the questions the charge raises regarding the employee’s honesty and fitness for employment, the Merit Systems Protection Board (the Board) recently held.

Minh Tuyet Ly was a Tax Examining Technician at the Wage and Investment Service Centers of the Internal Revenue Service in Georgia. In June 2011, the agency proposed to remove Tuyet Ly based on a charge of providing “false/misleading information on an official employment document.” In the first of two specifications, the agency alleged that Tuyet Ly denied on her Optional Form (OF) 306 that she had been fired from any job or quit after being told she would be fired during the last five years, but that Tuyet Ly had actually been discharged from the American Society for Quality for unfavorable employment or conduct.

In the second specification, the agency alleged that Tuyet Ly failed to disclose on her OF 306 that she was discharged from Franklin Accounting Tax and Services for unfavorable employment or conduct. Ultimately, the agency removed Tuyet Ly and she filed an appeal with the Board.

The administrative judge (AJ) found that the IRS established that Tuyet Ly provided false information on her OF 306 with the intent to deceive the agency. Given Tuyet Ly’s education and position as a Tax Examining Technician, the AJ rejected Tuyet Ly’s assertion that she did not understand the question on the form. The AJ also found that Tuyet Ly failed to establish that another employee was similarly situated as her since the employee did not omit information with the intent to deceive the IRS nor was the same deciding official involved in both cases. Finally, the AJ determined that the penalty of removal was reasonable and that the deciding official considered the relevant Douglas factors.

On review, the Board found that the AJ properly sustained the two specifications as Tuyet Ly failed to provide a reason to disturb the AJ’s finding that she provided false information on her OF 306 with the intent to deceive the agency.

Next, the Board concluded that the penalty of removal was reasonable. Tuyet Ly had raised a disparate penalties claim and alleged that her coworker, Mr. Thorne, also failed to include accurate information on his OF 306 but was not terminated. In order to succeed on a disparate penalties claim, the Board continued, an appellant must show that the charges and circumstances surrounding the charged behavior are substantially similar. If the appellant makes that showing, then the agency must prove a legitimate reason for the difference in treatment by a preponderance of the evidence.

The Board ultimately determined that the agency’s burden of showing a legitimate reason for a difference in treatment was not triggered because, unlike Tuyet Ly, Mr. Thorne was not discharged from his prior positions because of unfavorable employment or conduct, there was no evidence that Mr. Thorne failed to disclose his prior employment information with an intent to deceive the agency, and there was no evidence that Mr. Thorne and Tuyet Ly were in the same work unit or had the same supervisor. Since the Board has previously explained that falsification of documents raises serious questions of the employee’s honesty and fitness for employment, the penalty of removal for falsification of government employment documents was within the realm of reasonableness.

The case is Minh Tuyet Ly v. Department of the Treasury. The full case is available here.

Posted in Case Law Update

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