Bryan Pipes v. Department of the Army
Background
- Appellant (industrial equipment mechanic) was removed by the Army for one charge of failure to follow instructions (three specifications) and one charge of AWOL (five specifications). The agency sustained the charges and removed him.
- Appellant appealed to the MSPB and requested a hearing, asserting affirmative defenses including harmful procedural error, CBA violations, statutory violations under title 5, and ex parte communications.
- The administrative judge held a hearing, found the agency proved the charges (including nexus to the efficiency of the service), and sustained the removal.
- Key factual finding: appellant was on leave restriction and failed to provide required medical documentation; absences were properly charged as AWOL where documentation was not provided.
- Appellant elected a Board appeal (having been informed of redress rights), thereby waiving the contractual grievance remedy.
- The judge deferred to the agency’s penalty determination under the Douglas factors; appellant’s prior successful rating did not preclude removal or alter the Board’s sustaining of charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency violated the CBA or must resolve charges via grievance process | Pipes: disciplinary documents conflicted with CBA and charges must be processed through grievance | Agency: provided redress rights; appellant timely elected Board appeal, waiving grievance | Held: Election of Board appeal waived grievance rights; no CBA-based bar to removal |
| Whether disciplinary documents had to cite the CBA or other superior requirements | Pipes: agency should have cited CBA or follow CBA-based process | Agency: no requirement to cite CBA; procedures applied were proper | Held: No requirement shown; appellant failed to prove harmful procedural error |
| Whether agency violated 5 U.S.C. §§ 7103 or 7116 (statutory labor/management provisions) | Pipes: agency action conflicted with definitions/obligations in title 5 | Agency: those provisions were inapplicable to these facts | Held: Administrative judge correctly found the cited title 5 provisions inapplicable |
| Appropriateness/reasonableness of penalty given appellant’s successful performance rating | Pipes: successful rating should mitigate or preclude removal | Agency: penalty assessed under Douglas factors; prior performance is considered only for penalty | Held: Penalty deferred to agency as within reasonable parameters once charges sustained |
Key Cases Cited
- Johnson v. Dep’t of Veterans Affairs, 121 M.S.P.R. 695 (MSPB 2014) (election of remedies; timely Board appeal waives grievance)
- McNab v. Dep’t of the Army, 121 M.S.P.R. 661 (MSPB 2014) (deference to agency penalty where charges sustained)
- Jenkins v. Dep’t of the Treasury, 104 M.S.P.R. 345 (MSPB 2006) (discussion of alternative charges and proof requirements)
- Crosby v. U.S. Postal Serv., 74 M.S.P.R. 98 (MSPB 1997) (harmless error doctrine)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (MSPB 1981) (factors for penalty determination)
- Pinat v. Office of Personnel Mgmt., 931 F.2d 1544 (Fed. Cir. 1991) (deadline for filing petitions with Federal Circuit cannot ordinarily be waived)