Misinformation from Agency

Wednesday, May 15, 2013

On March 29, 2013, the Merit Systems Protection Board (MSPB) issued its decision in Freeborn v. Dept. of Justice, 2013 MSPB 23.The MSPB found that Freeborn resigned based on misinformation from management and thus was constructively removed without due process, and ordered his reinstatement.

Freeborn was a clinical director for the Bureau of Prisons. Freeborn admitted during an office of inspector general investigation that he had smuggled tennis shoes into the prison where he worked on a few occasions. According to Freeborn, the warden told Freeborn that he was going to suspend Freeborn for 10 days immediately and begin an administrative investigation, but gave Freeborn the option of resigning.

The warden never told Freeborn that he was entitled to notice and a chance to respond before any suspension could be imposed, and never informed Freeborn of any right to appeal to the MSPB. The warden did not disclose to Freeborn that he was actually planning to place Freeborn on "home duty status" (a non-disciplinary paid status which was not a suspension) and had a letter to that effect in his possession which he never presented to Freeborn. Faced with this option, and after receiving reassurances from the warden that immediate resignation would avoid the notation of a suspension in his file, Freeborn resigned. After later learning of the possibility of an MSPB appeal, Freeborn promptly filed an appeal claiming constructive discharge. After receiving briefing on the issue, the MSPB administrative dismissed the case for lack of jurisdiction due to lack of proof that the resignation was coerced. Freeborn then appealed to the full Board.

On appeal, the Board reversed the administrative judge's decision. The MSPB lacks jurisdiction over voluntary resignations, but has jurisdiction over cases where a resignation is involuntarily coerced from an employee (a "constructive discharge").Under MSPB case law, one of the ways that a constructive discharge can occur is when the employee's decision to resign is based upon misinformation or deception by management, so that management interferes with the employee's ability to make an informed decision to resign. The MSPB found that the warden had provided Freeborn with misinformation, in that he did not correct Freeborn's understanding that he was faced with immediate summary imposition of a 10 day disciplinary suspension, and that immediate resignation was the only way to avoid a disciplinary suspension appearing in his personnel file.

The MSPB also found that the warden also did not explain to Freeborn the difference between non-disciplinary home duty status and a disciplinary suspension, even when it was apparent to the warden that Freeborn had confused the two concepts. Since Freeborn was never provided with the due process necessary for a removal, the MSPB reversed his resignation and ordered him reinstated with back pay. The MSPB further remanded the case to the administrative judge for additional proceedings concerning whistleblower reprisal claims raised by Freeborn.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.