shaw bransford & roth case law update

Marijuana Still a Firing Offense for Feds

The full Merit Systems Protection Board disagreed with an MSPB administrative judge regarding the reasonableness of the penalty of removal after an employee admitted to using marijuana.

A Department of the Navy Student Trainee admitted to using marijuana frequently during an investigative interview, and the agency proposed his removal, charging him with illegal drug activity. The employee appealed his removal, and an MSPB administrative judge found that, because the conduct was undisputed, the agency had successfully proven its charge. However, the administrative judge found that the agency’s penalty determination was not entitled to deference as the penalty of removal “was not within the tolerable limits of reasonableness.” After the administrative judge mitigated the penalty to a 30-day suspension, the Agency appealed to the full Board, arguing that its penalty determination was entitled to deference, and that removal is the appropriate maximum reasonable penalty for the illegal drug activity charge. On March 7, 2016, the Board reversed the administrative judge’s initial decision and sustained the employee’s removal.

The Board cited to numerous precedential cases establishing that when the Board sustains an agency’s charges, it defers to the agency’s penalty determination unless the penalty “exceeds the range of allowable punishment specified by statute or regulation, or unless the penalty is so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” According to the Board, this rule exists because the employing agency, rather than the Board, must exercise its discretion in the maintenance of employee efficiency and discipline. In that way, the Board does not serve to displace management’s responsibility, but to ensure that managerial judgment is “properly exercised.”

While the administrative judge mitigated the penalty based on the continued support for and confidence in the employee shown by the employee’s supervisors (contained in letters of reference submitted in reply to the proposed removal), the Board decided that these attestations to the employee’s work ethic, character, skills, and dedication did not entitle the employee to a second chance, nor did it entitle the administrative judge to find the agency’s penalty determination unreasonable. The Board observed that penalty determinations belong to an agency rather than an employee’s supervisors, and that supervisory opinions alone are insufficient to overcome the agency’s judgment of the appropriate penalty.

The Board also held that even if it agreed with the administrative judge regarding whether the deciding official accorded proper weight to the letters of reference provided by the employee’s supervisors, the penalty of removal would still be within the tolerable limits of reasonableness for the sustained charge of illegal drug activity (specifically, marijuana use). The Board held that the employee’s work in enhancing the welfare of warfighters using submarines in military operations was vulnerable to the risk created by the employee’s frequent use of an illegal drug, and that the employee’s drug use was reckless given that the shipyard was a “Drug-Free Federal Workplace.”

Addressing the comparator cases put forth by the agency at hearing, the administrative judge distinguished the employee’s case from that of a comparator in possession of methamphetamines, marijuana, and paraphernalia on government property while under the influence.

The administrative judge instead relied on a comparator employee that occupied the same position during the same timeframe and had the same deciding official who had received a 30-day suspension for drug-related misconduct (specifically for refusing to take a drug test) and other misconduct (several specifications of inappropriate behavior toward a female employee) in mitigating the penalty to a 30-day suspension. The Board disagreed, stating only “the charges in the two cases were not substantially similar,” and that the comparator employee’s charge was due to his failure to comply with a directive that he be tested, rather than admittedly frequent marijuana use while not on duty.

The Board also found that the administrative judge’s reliance on the employee’s age (19-21 years old) as a mitigating factor due to the differing cultural and social mores regarding marijuana use was not a relevant mitigating factor.

For the above stated reasons, the Board reversed the administrative judge’s initial decision and sustained the employee’s removal.

Read the full case: Batara v. Department of the Navy


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: MSPB, Navy, case law update, federal firing authority, conor d dirks, conor dirks, marijuana



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