Basilene L. Henson v. Department of the Treasury
Background
- Basilene L. Henson, a GS-6 secretary, was removed effective May 23, 2013 for (1) repeatedly failing to follow a supervisory directive to return from lunch by 3:00 p.m. and (2) inaccurately reporting two time entries (under‑reporting leave by 15 minutes twice).
- A prior Board decision that had relied on collateral estoppel was vacated on procedural grounds and the case was remanded for a new initial decision. On remand the administrative judge sustained the removal.
- The agency documented 44 specifications of late returns from lunch after multiple written warnings; Henson did not dispute the time records but argued her office’s “sliding system” permitted later returns and that lunch timing was unrelated to job duties.
- Henson argued discrimination (race, color, age), retaliation for EEO activity and for filing a Board appeal, due process violations (timeliness of removal), harmful procedural error (wrong deciding official), bias by the administrative judge, and that the penalty was excessive given her long service.
- The administrative judge found the agency proved the charges, found no discrimination/retaliation or due process/harmful error/bias, and determined removal was reasonable given prior discipline and repeated warnings. The Board denied review and affirmed the remand initial decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to follow supervisory directive | Henson: office "sliding system" allowed later lunches; lunch timing unrelated to job | Agency: supervisor repeatedly instructed return by 3:00 p.m. to meet mailroom deadline; sliding system not in effect | Sustained — instruction was proper, timesheets showed violations |
| Inaccurate time reporting | Henson: leave may be taken in 15‑minute increments, so no misconduct | Agency: she under‑reported leave by 15 minutes and was not entitled to do so | Sustained — agency proved under‑reporting by preponderant evidence |
| Discrimination/retaliation (EEO) | Henson: removal was motivated by protected EEO activity and protected characteristics | Agency: no evidence showing discriminatory or retaliatory intent; officials’ knowledge of EEO activity tenuous | Denied — no evidence to infer discrimination or retaliation |
| Retaliation for filing Board appeal | Henson: re‑removal on same charges was retaliatory | Agency: reissuing removal after reversal for procedural defects is permissible | Denied — no proof of malicious intent or bad faith (Litton principle) |
| Due process / timeliness of removal | Henson: removal occurred fewer than 30 days after notice (TSP letter cited) | Agency: record contradicts her timing assertion | Denied — assertion belied by record |
| Harmful procedural error / bias / evidentiary rulings | Henson: wrong deciding official, judge biased, exhibits/continuance improperly handled, OPF documents illegally obtained | Agency: policy allows flexibility; no showing of prejudice; judge did not abuse discretion; agency may use OPF documents | Denied — no harmful error, no bias shown, no abuse of discretion in evidentiary rulings |
| Penalty severity | Henson: ~24 years of satisfactory service argues for lesser penalty | Agency: repeated warnings and prior 14‑day suspensions for similar misconduct show poor rehab potential | Affirmed — removal reasonable given aggravating factors and discipline history |
Key Cases Cited
- Litton v. Department of Justice, 118 M.S.P.R. 626 (MSPB 2012) (agency may reissue adverse action after prior decision reversed for procedural defects without showing bad faith)
- Stephen v. Department of the Air Force, 47 M.S.P.R. 672 (MSPB 1991) (harmful error requires a showing that procedural defect likely affected the outcome)
- Meier v. Department of the Interior, 3 M.S.P.R. 247 (MSPB 1980) (evidence already in the record is not "new")
- Avansino v. U.S. Postal Service, 3 M.S.P.R. 211 (MSPB 1980) (Board will not consider new evidence on review absent due diligence showing)
- Russo v. Veterans Administration, 3 M.S.P.R. 345 (MSPB 1980) (new evidence must be of sufficient weight to change the outcome to warrant review)
- Oliver v. Department of Transportation, 1 M.S.P.R. 382 (MSPB 1980) (allegations of judicial bias require more than informal personal contact to be disqualifying)