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Abrams v. United States Department of Navy

August 11, 1983; as amended.

JAMES ABRAMS, PETITIONER
v.
UNITED STATES DEPARTMENT OF THE NAVY, RESPONDENT



ON PETITION FOR REVIEW OF A DECISION OF THE MERIT SYSTEMS PROTECTION BOARD

Author: Van Dusen

Before ADAMS, GARTH and VAN DUSEN, Circuit Judges

Opinion OF THE COURT

VAN DUSEN, Senior Circuit Judge.

This petition for review of a decision of the Merit Systems Protection Board requires consideration of two issues. First, must a federal agency, which has discharged an employee who has committed a violent crime during off-duty hours, introduce evidence other than proof of the conviction for the crime in order to establish a nexus between the criminal misconduct and the efficiency of the service? Second, to rebut the presumption of nexus, is it sufficient for the employee to introduce evidence that his conviction has not adversely affected his ability to perform his own job? We conclude that the Board correctly held that, on this record, the agency initially was not required to present additional evidence establishing this nexus. However, the Board erred in stating that the petitioner rebutted the presumption of nexus by showing only that his conviction had not impaired his ability to perform his own job. Accordingly, we vacate the Board's Opinion and Order of July 21, 1982, and remand for reconsideration by the Board of its holding that the petitioner successfully rebutted the presumption of nexus.*fn1

I.

The Philadelphia Naval Shipyard (hereinafter "agency") hired the petitioner as a painter in July of 1974 and discharged him effective January 30, 1981, for leaving his assigned worksite without proper permission on May 21, 1980; for failing to report for scheduled, critical overtime on June 1, 1980; for conviction of several criminal offenses relating to an incident in which he shot another person during a card game; for excessive absenteeism from July 28 through October 1, 1980;*fn2 and for prior infractions relating to unauthorized absences.*fn3

The Presiding Official of the Philadelphia Regional Office determined that the agency had proven these charges by a preponderance of the evidence and sustained the agency's action in removing the petitioner from employment. On appeal, the Board affirmed this decision in all but one aspect. The Board held that the agency had not established by a preponderance of the evidence a connection between the criminal shooting and the efficiency of the service. The Board, except for this modification, concluded that the petitioner's discharge for excessive absenteeism, in light of his prior disciplinary record for attendance problems, fell "within the limits of reasonableness."*fn4 This appeal followed.*fn5

II.

The Civil Service Reform Act of 1978 permits removal of an employee "only for such cause as will promote the efficiency of the service." 5 U.S.C. § 7513(a).*fn6 To dismiss an employee for his off-duty misconduct, the agency must show a nexus between that behavior and the efficiency of the service. Yacovone v. Bolger, 207 U.S. App. D.C. 103, 645 F.2d 1028 (D.C.Cir. 1981). The Merit Systems Protection Board has interpreted this statutory requirement to mean that, where the nature and gravity of the misconduct are "egregious," a nexus is presumed. Merritt v. Department of Justice, No. PH 075209058 (June 8, 1981). The employee may rebut this presumption by showing an absence of adverse effect upon the efficiency of the service, thereby shifting the burden of going forward with evidence to the agency to establish, by a preponderance of the evidence, a nexus between the off-duty misconduct and the efficiency of the service. See Hoska v. Department of the Army, 677 F.2d 131, 219 U. S. App. D.C. 280 (D.C.Cir. 1982), and Yacovone v. Bolger, supra.*fn6

Although this presumption might suffice for certain non-violent criminal conduct or acts implicating moral turpitude,*fn7 the language of the Civil Service Act, particularly its legislative history and pertinent regulations demonstrate a special Congressional concern for dealing with federal employees convicted of violent criminal conduct.*fn8 Consequently, this type of case warrants the application of an even higher standard.

For example, 5 U.S.C. § 2302(b)(10) provides that

"Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority -- discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States."

In addition, the House Conference Report, No. 95-1717, 95th Cong., 2d Sess., reprinted in [1978] U.S. Code Cong. & Ad. News 2723, 2864, captioned "Conduct Unrelated to Job Performance," states in pertinent part that

". . . it is a prohibited personnel practice to discriminate for or against any employee or applicant on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others. The bill also provides, though, that nothing in the paragraph shall prohibit an agency from taking into account any conviction of the employee or applicant for any crime of violence or moral turpitude when determining suitability or fitness."*fn9

Finally, 5 C.F.R. § 731.202 directs the Office of Personnel Management to consider

"(a) . . . [i]n determining whether its action will promote the efficiency of the service, . . . [to] make its determination on the basis of:

"(1) Whether the conduct of the individual may reasonably be expected to interfere with or prevent effective performance in the position applied for or employed in; or

"(2) Whether the conduct of the individual may reasonably be expected to interfere with or prevent effective performance by the employing agency of its duties and responsibilities.

"(b) Specific factors. Among the reasons which may be used in making a determination under paragraph (a) of this section, any of the following reasons may be considered a basis for disqualification:

"(1) Delinquency or misconduct in prior employment;

"(2) Criminal, dishonest, infamous or notoriously disgraceful conduct;

"(3) Intentional false statement or deception or fraud in examination or appointment;

"(4) Refusal to furnish testimony as required by § 5.3 of this chapter;

"(5) Habitual use of intoxicating beverages to excess;

"(6) Abuse of narcotics, drugs, or other ...


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