Kenneth Kent v. Social Security Administration
DE-0752-17-0171-I-1
MSPBOct 28, 2022Background
- Appellant Kenneth R. Kent, formerly a Social Insurance Specialist at SSA’s Workload Support Unit, was removed for AWOL, inappropriate conduct, and failure to follow leave/attendance instructions based on incidents in 2016.
- Kent argued he had requested LWOP for time spent on his MSPB and EEO matters, that approved leave was improperly changed to AWOL, and that the agency failed to provide information it relied on in proposing removal.
- An administrative judge sustained the charges on the written record, found no due‑process or harmful procedural error, and rejected Kent’s affirmative defense of reprisal for protected EEO activity. Kent petitioned for review.
- The Board denied review, largely affirming the initial decision but clarified the standard for evaluating evidence of reprisal and addressed the AJ’s omission of a report the deciding official considered in assessing penalty.
- The Board held the AJ should have resolved the apparent conflict over whether the deciding official relied on an uninvestigated report of inappropriate statements, but the deciding official’s sworn statement that he would have removed Kent regardless rendered the penalty reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of AWOL charge | Kent: he requested LWOP for handling his MSPB/EEO appeals; therefore absence was authorized | SSA: Kent was absent without authorization and AWOL was proper | AJ/Board: agency proved AWOL; charge sustained |
| Change of approved leave / timesheet validation | Kent: agency improperly changed approved leave to AWOL and validated the timesheet incorrectly | SSA: leave records and evidence supported changing to AWOL | AJ/Board: considered record as whole; no error in sustaining charges or timesheet action |
| Due process / agency reliance on report in proposing/removing | Kent: he was not provided the information (report) the deciding official relied on and had no meaningful opportunity to respond | SSA: deciding official notified Kent and gave an opportunity to reply; report was similar to charged misconduct | Board: AJ erred by not resolving the conflict about the report, but deciding official’s sworn statement that removal decision would be same made penalty review still reasonable |
| Reprisal for protected EEO activity (affirmative defense) | Kent: alleged removal was retaliatory for protected EEO activity | SSA: no evidence linking EEO activity to removal; charges supported nondiscriminatory reasons | AJ/Board: Kent failed to prove by preponderant evidence that reprisal was a motivating factor; affirmative defense rejected |
Key Cases Cited
- Savage v. Department of the Army, 122 M.S.P.R. 612 (Board standard for motivating‑factor analysis in discrimination/retaliation claims)
- Clay v. Department of the Army, 123 M.S.P.R. 245 (deference where AJ considered whole record and drew appropriate inferences)
- Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (clarifying Savage does not require separate direct vs. circumstantial frameworks)
- Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir.) (three types of circumstantial evidence approaches referenced)
- NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) (right to union representation in investigatory interviews—background authority cited by appellant)
- Thomas v. U.S. Postal Service, 96 M.S.P.R. 179 (agency may consider uncharged similar misconduct when notice given)
- Adam v. U.S. Postal Service, 96 M.S.P.R. 492 (penalty review: agency must weigh relevant factors and act within tolerable limits of reasonableness)
- Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357 (deference to AJ’s findings when record considered as whole)