Appealed from: Merit Systems Protection Board.
Markey, Chief Judge, Friedman, Rich, Smith, and Nies, Circuit Judges.
This appeal is from the April 25, 1983, decision of the Merit Systems Protection Board (Board) sustaining the removal of John A. Novotny from his position as Air Traffic Control Specialist at the Denver Air Route Traffic Control Center. Novotny's discharge was based on the grounds that he was absent from his position without leave and that he participated in a strike against the United States. We affirm.
Novotny was an Air Traffic Control Specialist at the Denver Air Route Traffic Control Center, Longmont, Colorado. On August 3, 1981, the Professional Air Traffic Controllers Organization (PATCO) began a nation-wide strike against the Department of Transportion's Federal Aviation Administration (agency). Novotny was charged with failing to report for duty at 3:15 p.m. on August 6, 1981. By letter of August 9, 1981, Chief Ralph P. Kiss of the Denver Air Route Traffic Control Center advised Novotny that the agency proposed to remove him from his position as an air traffic controller based upon his participation in an illegal strike against the United States and for being absent without leave.
By letter of August 17, 1981, Novotny responded to Chief Kiss's letter of August 9, stating that he was unable to affirm or deny the charges. By letter of August 22, Novotny was informed that his employment would be terminated effective September 2, 1981. Novotny appealed to the Board, and after a hearing, a Presiding Official sustained the agency's removal of Novotny, as did the Board on petition for review in Campbell et al. v. Department of Transportation (Docket No. DEO75281F0674 April 25, 1983).
Novotny did not deny the charges against him at any stage of these proceedings, nor did he elect to testify during the hearing before the Presiding Official.
More details concerning the air traffic controllers' strike are set forth in related cases decided concurrently herewith: Schapansky v. Department of Transportation, 735 F.2d 477 (Fed. Cir. 1984); Adams v. Department of Transportation, 735 F.2d 488 (Fed. Cir. 1984); and Campbell v. Department of Transportation, 735 F.2d 497 (Fed. Cir. 1984).
Novotny challenges the agency's removal action on several grounds, principally (1) the agency failed to present a prima facie case of his participation in a strike and did not prove its case by a preponderance of the evidence; (2) his removal did not promote the efficiency of the service; and (3) the penalty of removal was not justified. These issues were decided in Schapansky, supra, and Novotny's appeal on these grounds is rejected for the reasons set forth in Schapansky.
Novotny further contends that (4) the Presiding Official improperly based his decision on hearsay evidence, i.e., Time and Attendance Reports on which Chief Kiss relied to corroborate Novotny's absence from work on the August 6 assigned shift. This issue was resolved in another related air traffic controller case decided concurrently herewith, Dorrance v. Department of Transportation, 735 F.2d 516 (Fed. Cir. 1984), and Novotny's argument is rejected for the reasons set out in Dorrance.
Additionally, Novotny contends that (5) the agency committed an error of law by not allowing Novotny at least seven days to respond to the charges against him; (6) he was illegally suspended during the pendency of the agency's removal action. This court held in favor of the agency on this issue in Adams, supra. The (7) asserted failure to allow an oral response is dealt with in Campbell, supra.
Finally, Novotny urges our reversal of the Board's decision because of several procedural errors which will be treated herein: (8) the agency's failure to conduct an independent investigation of the crime of striking with which he was charged; (9) the agency failed to send copies of the materials it relied on to him; (10) the agency failed to specify the actual elements of the charges; and (11) the processing ...