Suitability Case Law

Treasury Employees Union and Internal Revenue Service, 66 FLRA No.94 (2012)
In this FLRA case, in denying the Union's exceptions regarding covered employees, the FLRA found that OPM's investigators were performing OPM's investigative function in connection with making suitability determinations and were acting under OPM's control when interviewing covered IRS employees. Based on the findings, the FLRA concluded that OPM investigators were not representatives of the Agency under 5 U.S.C. 7114(a)(2)(B). With regard to excepted service employees, the FLRA concluded that there is no indication that OPM's investigators were carrying out an OPM function. The FLRA thus granted the Union's exceptions with regard to excepted service employees and remanded the award for resubmission to the arbitrator to determine an appropriate remedy.

Scott v. Office of Personnel Management, 2011 MSPB 50 (2011)
The appellant petitioned for review of an initial decision that affirmed OPM’s decision to direct the appellant’s removal from the Defense Finance Accounting Service and take other suitability actions pursuant to 5 C.F.R. Part 731 on the basis of deception and fraud in connection with his involvement in writing a résumé for his wife. It was undisputed that the appellant was an employee in the competitive service with adverse action appeal rights prior to the conduct that formed the basis of OPM’s negative suitability decision. The initial decision upholding OPM’s suitability actions was issued prior to the issuance of Aguzie v. Office of Personnel Management, 116 M.S.P.R. 64 (2011), in which the Board held that an OPM-directed suitability removal of a tenured employee is appealable under 5 U.S.C. 7513(d), and subject to the “efficiency of the service” standard of 5 U.S.C. 7513(a). The Director of the OPM petitioned the Board to reconsider its May 9, 2011 Opinion and Order in Scott v. OPM, 116 M.S.P.R. 356 (2011), which reversed the appellant’s suitability-based removal. The Board denied the Director’s petition and affirmed their previous decision, see Scott v. OPM, 2012 MSPB 25.

Aguzie and Barnes v. Office of Personnel Management, 2011 MSPB 10 (2011)
In Aguzie and Barnes v. OPM, the MSPB issued a decision holding that non-probationary employees who are found unsuitable for federal employment by OPM have the right to challenge their resulting removal from federal employment through the appellate procedures outlined in 5 USC 7512 and 7513.

United States Nuclear Regulatory Commission and National Treasury Employees Union, Chapter 208, 65 FLRA No. 22 (2010)
In this FLRA case, the Arbitrator found that the Agency violated the parties’ agreement and 7114(a)(2)(B) of the Statute by restricting a Union representative’s participation in an investigatory interview. This case sets forth union representation in investigatory interviews. Section 7114(a)(2)(B) of the Statute provides that “an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee; and the employee requests representation.” 7114(a)(2)(B) does not exclude security-clearance-related examinations from the definition of “examination.”

Alvarez v. Department of Homeland Security, 112 M.S.P.R. 434 (2009)
In Alvarez v. DHS, the MSPB determined that the DHS's decision to rescind a conditional offer of employment based on suitability appeared to be a matter now outside its jurisdiction under the OPM's new regulations; which removed a denial of appointment from the list of actions appealable to the MSPB and set forth that a nonselection for a specific position is not a "suitability action" even if it is based on the criteria for making suitability determinations under the former 5 CFR 731.203 (a).

Doerr v. Office of Personnel Management, 104 M.S.P.R. 196, 202 (2006)
Doerr v. OPM established an agency must demonstrate by preponderant evidence that the appellant's conduct or character may have an impact on the integrity or the efficiency of the service based on one of the specific suitability factors listed in 5 CFR 731. This is necessary if the suitability decision is to be sustained.

Folio v. Department of Homeland Security, 402 F.3d 1350, 1354-55 (2005)
Folio v. Dept. of Homeland Security established that the MSPB is within the constraints of 5 CFR 731.501 when it reviews the relationship between the specific factors and additional considerations cited in a final decision. There is nothing in the regulation to preclude the MSPB from reviewing all aspects of an unsuitability determination, including whether the charged conduct renders an individual unsuitable for the position in question.

Woodward v. Office of Personnel Management, 74 M.S.P.R. 389 (1997)
In Woodward v. OPM, the MSPB outlined the evidence in OPM's investigation and discussed how the factors from Borninkhof should be applied to determine the probative value of the evidence. Woodward also established how to determine how trustworthy the record is by considering specific factors.

Hanker v. Department of Treasury, 73 M.S.P.R. 159 (1997)
Hanker v. Dept. of Treasury found that law enforcement positions require a higher standard of conduct or degree of public trust. The Subject of this case provided inconsistent reasons for omitting a prior period of employment. Hanker also found that, in the absence of any plausible explanation for failure to include required information in an application, the MSPB may infer an intent to deceive. Intentional misrepresentations raise serious doubts as to honesty and fitness for employment--sufficient enough to support a negative suitability determination.

Hillen v. Department of Army, 35 M.S.P.R. 453 (1987)
Hillen v. Department of Army discussed that a determination concerning the credibility of a witness is based on specific factors. In assessing whether or not a disputed fact is more likely true than untrue, the credibility of the Subject and any witnesses is an important determination.

Patch v. Office of Personnel Management, 30. M.S.P.R. 87 (1986)
Patch v. OPM established that past conduct can be determined to be incompatible with acceptable performance needed by individuals working in Federal Government positions. Therefore, conduct can still be considered regardless of what other actions previous employers, agencies, etc. have taken in the past.

Kissner v. Office of Personnel Management, 792 F.2d. 133 (Fed, Cir. 1986)
In the case of Kissner v. OPM, the Subject lied on prior Federal applications but was honest on the application for the position to which the subject was appointed. It was determined that nexus between intentional falsification of an employment application and the efficiency of the service may be presumed. The fact that an employee later corrects false information on an employment document does not absolve the person from previous false statements.

McCreary v. Office of Personnel Management, 27 M.S.P.R. 459 (1985)
In the case of McCreary v. OPM, the MSPB found that falsification raises serious doubts regarding the employee's honesty and fitness for employment. Therefore, removal for falsification of Government documents promotes the efficiency of the service.

Borninkhof v. Department of Justice, 5 M.S.P.R. 77 (1981)
Borninkhof v. Department of Justice established the probative weight of evidence standard.

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