In Socorro v. Dept. of Homeland Security, DA-0752-12-0339-I-1 (February 27, 2015), the MSPB reversed the removal of a Customs and Border Protection officer who had requested placement on light duty while pregnant with and later breastfeeding her newborn son. Her position required that she be available for overtime, rotating shifts, and be able to use a firearm.

Upon learning she was pregnant, and at the recommendation of her doctor, the employee began a period of light duty, which lasted several months until the birth of her son. After roughly three months of approved FLMA leave, the employee returned to work. Shortly thereafter, she submitted documentation from her doctor and her son’s pediatrician that requested she be placed on light duty and relieved from rotating shifts to facilitate breastfeeding and prevent exposure to harmful substances and diseases which could be transmitted to her son.

ADVERTISEMENT



The agency’s labor and employee relations specialist made a determination that the employee had provided sufficient medical documentation to support her request to remain on light duty. However, less than three weeks later, the agency sent the employee a letter directing her to choose either to return to full duty or resign. The agency informed the employee that if she did not choose one of these options within five days, she faced the possibility of removal.The employee refused to accept the options, and approximately two weeks later, received her proposed removal. The proposal specified that the removal was not a disciplinary action, but was based on her unavailability for full duty. Following the employee’s reply to the proposal, the agency removed her from service.

The employee appealed her removal to the MSPB, contesting the charges underlying the removal, alleging a violation of her due process rights, and arguing that the removal was tainted by unlawful discrimination and reprisal. Following an initial decision that overturned the employee’s removal, but failed to find discrimination or reprisal, both the employee and the agency appealed.

On appeal, the Board again found the employee’s removal improper. The official who made the decision to remove the employee had impermissibly effected the removal for disciplinary reasons, although it had explicitly told the employee her removal was a non-disciplinary action. The Board found that the testimony of the proposing and deciding officials established that the real reason the agency removed the employee was because it felt she had refused to report for full duty, not because she was unavailable to do so; a charge tantamount to failure to follow instructions. The Board found the agency could not remove the employee without giving her an opportunity to respond to the actual reason for which it removed her.

With regard to the employee’s discrimination claim, the Board noted that the Supreme Court will shortly decide a case under the Pregnancy Discrimination Act that will likely affect the outcome of this case, and so declined to address gender discrimination in its opinion.

This case underscores the importance of differences between what the official documentation surrounding a disciplinary action convey and what the proposing and deciding officials actually have in mind when they effect the action.Discrepancies can constitute a violation of due process rights.

* This information is provided by the attorneys at Passman & Kaplan, P.C.