MSPB Reverses Removal after Agency Withheld Requested Information
A Small Business Administration (“SBA”) Public Affairs Specialist was removed by the agency based on charges of improper use of a government computer (sending sexually oriented images and videos from his work computer) and lack of candor in an agency investigation into a coworker’s alleged creation of a hostile work environment. On appeal to the MSPB, an administrative judge sustained the agency’s charges, but mitigated the penalty to a 60-day suspension, a reduction in grade, and an optional reassignment to a different position for which the employee was qualified, finding that the agency had not properly weighed all of the Douglas factors. This finding was based on his lack of disciplinary history, tenure with the agency, rehabilitative potential, and the fact that the employee “had been working in an environment for several years in which his immediate supervisor…and other agency managers condoned the emailing of sexually oriented materials by employees.” The administrative judge also concluded that the agency had violated Douglas by failing to provide the deciding official with information he requested about discipline imposed on other employees found to have engaged in similar misconduct during the same investigation. The agency petitioned the full Board for review, and the employee filed a cross-petition for review arguing that the penalty imposed should be mitigated further, while not specifically challenging the decision to sustain the charges against him. On May 28, 2014, the Board affirmed the administrative judge’s decision, which mitigated the removal to a 60-day suspension.
The Board cited Parker v. U.S. Postal Service, 111 M.S.P.R. 510 (Fed. Cir. 2009) to support its proposition that even when the Board sustains all of the agency’s charges, as it did in this case, it may still mitigate the penalty when the agency’s penalty is too severe. According to Parker, the Board will only modify the penalty when it finds that the agency failed to weigh the relevant Douglas factors or when the penalty imposed is unreasonable. The Board also noted that penalties beyond the bounds of reasonableness will only be mitigated by the Board enough to bring them back within the bounds of reasonableness.
The Board began by analyzing the agency’s treatment of the Douglas factor which contemplates the “consistency of the penalty with those imposed upon other employees for the same or similar offences.” Exploring the record, the Board found that the deciding official at the agency had inquired into the circumstances of the other employees who were charged with misconduct as part of the same investigation that led to the employee’s proposed removal. But despite the deciding official’s inquiry, the agency’s human resources office informed the deciding official that the office had not found that the conduct of the eight other employees who would receive a proposed suspension, or the 22 employees who would receive a letter of reprimand or verbal warning, rose to the level of removal, and that the human resources office had decided not to provide the deciding official with an internal report of the specifics. However, the human resources office did inform the deciding official that “the key item of clarification is that the explicit content of the other suspension cases does not rise to the level” of the content in the employee’s case.
The Board observed that based on the agency’s decision not to provide the deciding official with the information he requested about discipline and conduct that could potentially be compared to the plaintiff’s for the purpose of measuring the consistency of the penalty for the same or similar offences, the administrative judge held that the agency had contravened Douglas. On review, the Board agreed with the administrative judge, and added that a “deciding official must be in an informed position in order to make a conscientious penalty determination under the facts of the case before him.”
The Board found that since the employee specifically raised the issue of the consistency of the penalty in his written reply before the deciding official, the agency had actively prevented the deciding official from undertaking a conscientious consideration of the consistency of the penalty by withholding the information he requested. Citing Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009) and Boucher v. U.S. Postal Service, 118 M.S.P.R. 640 (2012), the Board stated that under Douglas, “it is insufficient for another agency employee to predetermine for the deciding official which instances of misconduct he should consider,” and that this is particularly true in a case where the deciding official was “denied comparator information” about employees with similar misconduct discovered during the same investigation which led to the removal discussed in this case.
While the MSPB administrative judge, based on his finding that the agency failed to conduct a correct penalty analysis, concluded that the maximum reasonable penalty was a 60-day suspension, reduction in grade, and optional reassignment to a vacant position within the agency, the full Board on review affirmed the mitigation to a 60-day suspension and reduction in grade, but vacated the administrative judge’s order permitting optional reassignment to a vacancy for which the employee was qualified.
Although the agency argued that removal was the maximum reasonable penalty that should be imposed, the Board distinguished the MSPB precedent cited by the agency (Von Muller v. Department of Energy, 101 M.S.P.R. 91, aff’d, 204 F. App’x 17 (Fed. Cir. 2006) and Social Security Administration v. Steverson, 111 M.S.P.R. 649 (2009), aff’d, 383 F. App’x 939 (Fed. Cir. 2012) by noting that those cases included aggravating factors (sending sexually explicit images to external constituents, and storing sexually oriented material through the misuse of government equipment, respectively) that were not present in the employee’s case.
The agency also challenged the administrative judge’s finding that the appellant’s misconduct took place in an environment in which such conduct was condoned. The Board dismissed this challenge by stating that the agency’s “mere disagreement with the administrative judge’s factual conclusion on this point, which is supported by the record, does not support re-imposing” the removal instead of the 60-day suspension. The Board also found that the agency’s attempt to use the employee’s acknowledgment of his wrongdoing to counter the administrative judge’s finding that such conduct was condoned was a misapplication of Douglas, because the truthful admission of misconduct is a mitigating, not an aggravating factor.
Asserting that the penalty should be mitigated further, the employee argued that other employees who were involved in similar misconduct received much lesser penalties. According to the Board, however, to support his argument, the employee cited actions which were not included as grounds for discipline in the proposed discipline those employees received. The Board explained, however, that a deciding official is not required to consider “the universe of conduct” that was both charged and that could have been charged when conducting a disparate penalty analysis. Agreeing with the administrative judge, the Board held that the employee’s sustained misconduct justified the imposition of a penalty greater than a 14-day suspension, unlike the comparator employees cited by the employee, because of the serious nature of his misconduct, and because of his lack of candor.
The Board considered post-removal comparator evidence as well, despite “some prudential concerns about considering post-removal comparator evidence in all cases.” However, due to the length of time that had passed between the employee’s proposed penalty and the post-removal comparator’s discipline, as well as the legitimate reasons for the imposition of different penalties, the Board did not find that there had been a disparate penalty imposed.
Finally, the Board disagreed with the administrative judge that the penalty should be mitigated to include an optional reassignment, noting that prior Board decisions which upheld reassignment have involved “factual findings that the employee cannot perform his prior position given the nature of his sustained misconduct and that there exist vacancies within the agency to which the appellant could be reassigned.” Because the administrative judge made no such findings, the Board found that the agency could return the employee to his prior position, and vacated the order providing for an optional reassignment.
For the above stated reasons, the Merit Systems Protection Board canceled the employee’s removal and substituted in its place a 60-day suspension and simultaneous reduction of no more than one grade, while ordering the agency to provide the correct amount of back pay, interest, and other benefits under Office of Personnel Management regulations.
This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, P.C.
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