Board Finds Agency's Penalty of Removal Unreasonable when Employee had Long History of Federal Service and was going through Extreme Emotional Stress During Time of Misconduct

James Portner was a GS-14 Supervisory Diversion Group Investigation with the Drug Enforcement Administration. In September 2008, Portner was staying at a Comfort Suites in Springfield, Ill., in a temporary duty status. After work on September 9, 2008, Portner parked his official government vehicle (OGV) at an Outback Steakhouse near his hotel, walked to an adjacent Hooters restaurant, and drank two beers with his dinne


After leaving Hooters, Portner discovered damage on his OGV, but decided to drive back to the Comfort Suites without reporting the damage.


The next morning, Portner falsely reported to a subordinate employee that his OGV had been damaged overnight in the parking lot of the hotel. Portner reiterated this false story to several police officers who came to the scene and his first-line supervisor, Demetra Ashley. In a later conversation with Ashley, Portner corrected his statements to her. The Department of Justice charged Portner with making false statements and unauthorized use of a government vehicle because he used his OGV after consuming alcohol, ultimately, removed him from his position with DEA

On review, the Merit Systems Protection Board found that, while the agency proved the charged misconduct, the deciding official failed to properly weigh the relevant Douglas factors and, therefore, the agency’s penalty determination was not entitled to deference.


The Board began its analysis by explaining that when it sustains an agency’s charges, as was the case here, the Board will review the penalty “only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness.


In Portner’s case, the deciding official failed to consider the relevant Douglas factors and erred in finding Portner lacked rehabilitative potential because he failed to show remorse for his misconduct. In particular, the Board noted, the deciding official downplayed the fact that Portner profusely apologized to Ashley and in his oral response to the proposed removal. “Accordingly, because the deciding official failed to consider the relevant Douglas factors, the agency’s penalty determination is not entitled to deference,” the Board wrote.


In addition, the Board continued, Portner had over 24 years of federal service and was going through an emotionally troubling period during the time of the misconduct. Portner also showed that the agency had imposed suspensions, not removals, for similar or worse misconduct committed by law enforcement officers.


Therefore, the agency’s penalty of removal was unreasonable and the Board mitigated the agency action to a 45-day suspension.


The case is Portner v. Department of Justice.


Posted in Case Law Update



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