Bryan Pipes v. Department of the Army
Background
- Appellant Bryan Pipes, an 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 proposed removal, Pipes replied, and the agency sustained the charges and imposed removal. Pipes appealed to the MSPB and requested a hearing.
- Pipes asserted affirmative defenses: harmful procedural error, CBA violations, violations of certain Title 5 provisions, and due process violations (ex parte contacts).
- The administrative judge held a hearing, found nexus to efficiency of the service, sustained the charges, and upheld removal. Pipes petitioned for review.
- The Board denied review and affirmed the initial decision, finding Pipes failed to prove his affirmative defenses and that the agency’s penalty fell within reasoned parameters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal conflicted with the CBA or required CBA-based procedures | Pipes argued charges conflicted with CBA and therefore should be resolved under the CBA | Agency relied on removal procedures and pointed to CBA language allowing AWOL if required medical documentation not provided; notified Pipes of appeal/grievance election | Held: Pipes failed to prove CBA violation; CBA did not bar agency action and he waived grievance by electing MSPB appeal |
| Whether agency violated Title 5 labor provisions (5 U.S.C. §§ 7103, 7116) | Pipes claimed agency violated definitions and prohibited actions under Title 5 | Agency argued cited statutory provisions were inapplicable to the facts | Held: Board agreed provisions were inapplicable; Pipes did not prove violations |
| Whether procedural defects (harmful procedural error/ex parte contacts) warranted relief | Pipes alleged harmful procedural error and due process (ex parte communications) | Agency and AJ found no controlling procedural requirement was violated and no harmful error proven | Held: Pipes failed to prove harmful procedural error or due process violation |
| Whether Pipes’s good performance rating invalidates removal or requires lesser penalty | Pipes argued his successful performance rating should prevent removal | Agency argued performance is a Douglas-factor consideration for penalty only, not a defense to charges | Held: Performance considered only in penalty analysis; penalty was within reasonable parameters and deferred to agency |
Key Cases Cited
- Jenkins v. Department of the Treasury, 104 M.S.P.R. 345 (MSPB) (discussing alternative charging concepts)
- Johnson v. Department of Veterans Affairs, 121 M.S.P.R. 695 (MSPB) (election of remedies: appeal to MSPB waives grievance)
- McNab v. Department of the Army, 121 M.S.P.R. 661 (MSPB) (deferring to agency penalty when charges are sustained)
- Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (MSPB) (harmless error doctrine)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (MSPB) (factors for penalty determination)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir.) (strict court filing deadline for appeals)