In Freeman v. U.S. Postal Service, No. 04-3399, 2005 WL 2130615 (non-precedential 2005), the U.S. Court of Appeals for the Federal Circuit reversed the Merit Systems Protection Board’s (MSPB) finding of willful misrepresentation and remanded the case for a determination of the appropriate penalty.

William D. Freeman, a 12-year employee of the U.S. Postal Service (USPS) suffered from a work-related medical condition and was off of work for over two months. The Office of Workers Compensation Programs (OWCP) accepted Mr. Freeman’s claim that his injury was caused by his duties as a rural letter carrier. After being informed that Mr. Freeman was delivering newspapers while he was out of work because of his medical condition, the USPS conducted an investigation and charged Mr. Freeman with three specifications of willful misrepresentation. The agency asserted that (1) Mr. Freeman misrepresented his medical condition in order to extend his time away from work; (2) improperly requested and received continuation of pay; and (3) intentionally wrote an incorrect date on the OWCP form that he filed just prior to returning to work, extending his leave buy back period by one day. Mr. Freeman was terminated for the alleged willful misrepresentations and appealed his removal to the MSPB.

The administrative judge upheld only one of the specifications but sustained the penalty of removal. She concluded that Mr. Freeman had willfully misrepresented the date of his leave buy back period by one day. As affirmative defenses, Mr. Freeman asserted that he had not been given due process, and that his disabilities, including Attention Deficit Hyperactivity Disorder (ADHD), were not accommodated.

The administrative judge found that Mr. Freeman had not been denied due process. In addition, she found that the agency did not neglect its responsibility to accommodate Mr. Freeman. While the administrative judge did find that Mr. Freeman suffered from moderate to severe ADHD, which impaired his ability to complete paperwork, she concluded that it did not affect his ability to complete the leave buy back form. Additionally, the administrative judge concluded that Mr. Freeman failed to disprove that the misrepresentation was intentional. Because Mr. Freeman did not offer a plausible explanation for the incorrect information, the administrative judge inferred that Mr. Freeman knowingly supplied incorrect information.

In order to sustain a charge of willful misrepresentation, the agency needed to prove by a preponderance of the evidence that Mr. Freeman (1) supplied incorrect information and (2) did so knowingly, with an intent to deceive or mislead the agency. The court found that the burden of proving the intent element of this charge rested with the agency, not with the employee. Thus, if the agency failed to prove intent, Mr. Freeman was not required to disprove it. While the court found that there was circumstantial evidence of intent, it also concluded that Mr. Freeman presented a plausible explanation for providing incorrect information. The court further held that Mr. Freeman’s plausible explanation was given credence by the evidence presented by his psychiatrist that indicated a link between ADHD and the inability to pay close attention to details or making careless mistakes. The court did note that in some cases where the employee does not present any explanation for false information, the court allows an inference of intent. The court dismissed the willful misrepresentation charge and remanded the case back to the MSPB for a determination of the appropriate remedy in favor of Mr. Freeman.

When facing a charge of willful misrepresentation, it is important to remember that the agency must prove that the employee supplied incorrect information and did so intentionally. Even though the agency has the burden of proving that the employee provided incorrect information intentionally, it is always in the best interest of the employee to provide an explanation as to why the employee supplied false information. While the administrative judge cannot infer intent based on the mere existence of false information, as noted by the court, such an inference is permitted when an employee offers no explanation for his mistakes.

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.

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