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November 2013

Disparate Penalties at the MSPB

By John V. Berry, Esq., www.berrylegal.com

Often times our law firm represents federal employees in appeals before the Merit Systems Protection Board (MSPB) involving adverse action cases (i.e. removal actions, suspensions of 15 days or more).  In MSPB appeals, there is generally a 2-stage process undertaken by the administrative judge in their evaluation of an adverse action (disciplinary) appeal: (1) whether or not the allegations by the agency have been proven by a preponderance of the evidence; and (2) whether or not there are mitigating circumstances which could mitigate the disciplinary penalty received. 

As part of the penalty mitigation process, the MSPB has permitted appellants to argue that they received a disparate penalty (as compared to other employees in the agency) for the same conduct.  This article evaluates the situation where a federal employee receives a penalty for certain misconduct that is more severe than a penalty received by other federal employees for similar misconduct. 

Disparate Penalties Explained

A disparate penalty is a disciplinary penalty which is different or out of line with what other similarly situated employees have received for similar misconduct.  For instance, suppose a federal employee has received a proposed removal for misuse of a government credit card.  Further, suppose that other similarly situated employees in the office (and under the same chain of command) have been found to have committed similar misuse but were only given letters of reprimand or were not disciplined at all.  

In such a situation, one can argue at the MSPB, on appeal, that the federal agency provided a disparate penalty to the appellant in an effort to reduce the penalty that was assessed. Consistency of the discipline in such cases is a part of the Douglas factor mitigation analysis.

The MSPB Standard for Disparate Penalties

The MSPB has found that disparate treatment involving disciplinary penalties is a proper issue for federal employee appeals.  See Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012). The MSPB has held that in order to establish that a disparate penalty took place that an appellant must show that there is enough similarity between both the nature of the misconduct and other factors which would lead a reasonable person to conclude that the agency treated similarly-situated employees differently.

In proving the disparate penalty claim, the MSPB has found that an appellant has to establish that the charges and the circumstances surrounding the charged behavior are "substantially similar."  Doing so in the past required proof that the comparable penalty involved an employee in the same work unit, with the same supervisor, who was subjected to the same standards governing discipline. Von Muller v. Dep’t. of Energy, 101 M.S.P.R. 91, ¶ 22, aff’d, 204 F. App’x 17 (Fed. Cir. 2006).  In other words, the principle did not necessarily apply to a case where an employee in another work unit received a different penalty for the same type of misconduct case.  However, the chain of command issue has come under some debate since the Federal Circuit ruled in Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009) (Agency must explain why different chain of command justify a different penalty).  Since Williams, the MSPB has avoided hard and fast rules regarding disparate penalty issues, opting for an overall review of the facts at issue to determine whether a basis exists for the disparate penalty between similar employees with similar misconduct. 

If an appellant is able to demonstrate their disparate penalty claims before the MSPB, the federal agency that took the adverse action must then prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld. Boucher, 118 M.S.P.R. 640, ¶ 20.  In addition, an appellant can raise the disparity of penalties argument based on evidence that similarly situated employees received no discipline after committing similar misconduct.  Fearon v. Dep’t of Labor, M.S.P.R. 428, 434 ¶ 11 (2005). 

In sum, it is important for federal employees that have been disciplined more harshly than other employees for similar conduct to be aware of the potential legal arguments available for their legal defense at both the response stage before their federal agency and before the MSPB on appeal.  

Contact Us

When facing an MSPB appeal involving the issue of disparate penalties it is important to obtain legal representation. Our law firm represents federal employees in the MSPB process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.