MSPB Appeal: When will the Board mitigate a federal employee's removal charge to a disciplinary suspension?

An interesting decision from the Full Merit Systems Protection Board sheds a little light on how an Administrative Judge should review the Douglas Factors. The case I am going to discuss is Raco v. Social Security Administration, MSPB Docket #PH-0752-10-0543-I-1 (September 29, 2011), found at 2011 MSPB 87.

The Agency removed the federal employee for charges of conduct unbecoming – alleging that the employee falsified credit hour compensation forms by claiming credit hours for time she didn’t work. Most of the 22 discrepancies charged by the Agency were under 5 minutes – the total time at issue seems to be about 1 hour and 34 minutes.

The MSPB Administrative Judge initially found that the charges were not sustained because of the short periods of time involved – this was reversed by the full MSPB which found that the de minimis nature of any alleged misconduct should be considered in the penalty phase. The MSPB Administrative Judge mitigated the removal to thirty (30) days.

The Agency appealed to the full Merit Systems Protection Board (MSPB) and appears to have made voluminous arguments. The plan backfired on the Agency, as it seems they won the battle but lost the war. The full MSPB agreed with the Agency that they had proved the misconduct and that they had proved nexus – and reversed the MSPB Administrative Judge’s decision holding otherwise.

However, the full MSPB concluded that only a 14 day suspension was warranted. Some interesting points from the Board’s thoughts on the Douglas Factors in this case:

1) The Agency relied on an argument that 22 small time reporting discrepancies add up to one serious offense. This is a common Agency tactic. The full MSPB states that this tactic does not work – 19 “de minimis” time reporting discrepancies did not convince the MSPB that disciplinary action was appropriate. In this case, no intent to do wrong was charged or proven by the Agency. If they did charge intentional falsification (and proved it), the result may well have been different.

2) The Appellant had 20 years of successful federal service, with no prior discipline. This is a big “no-no” for Agencies. Most MSPB Administrative Judges will not sustain an action for removal of a long-time federal employee, with no disciplinary or poor-performance record, for minor charges such as the ones in this case. This is not to say these employees won’t (or shouldn’t) be disciplined; however, Agencies that go straight for the jugular on “de minimis” charges like this are going to have a tough row to hoe at hearing. (Caveat: most MSPB Administrative Judges means exactly that – there are at least two (2) MSPB Administrative Judges that I am aware of who would likely have sustained discipline like this against a federal employee, even with facts like this.)

3) The Appellant produced evidence of a “disparate penalty” – evidence showing that others had committed similar discipline and received substantially lesser discipline.

Keep in mind, however, that this will not be the result in every case involving a long-term employee with a track record of good performance – there are some offenses which will outweigh even a good track record. Everything about this case, though (and it is a decision worth reading) suggests that the MSPB will not sustain an action where the Agency “jumps the gun” (or, in modern parlance, “jumps the shark”).

To be honest, I was a little surprised to read a decision like this – this seems like the type of MSPB appeal that most Federal Agencies would settle. However, in reading this case and some of the Agency attorney’s arguments on appeal, I was reminded of an old adage: the most dangerous snakes are young ones – the attack everything and don’t know how to regulate their venom.

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