By John V. Berry, Esq., www.berrylegal.com
Our firm represents federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov in the appeals process. In doing so, we have often been called upon to represent federal employees in cases where the facts are either not in dispute or where they are less in dispute than the penalty which is assessed. We often attempt to mitigate proposed removal actions for federal employees to lesser penalties. Often, these types of issues move to the MSPB on appeal.
How Does the Penalty Evaluation Process Come Into Play?
Typically, a penalty analysis comes into play following a decision on the merits of disciplinary charges by a federal agency. If a charge is not sustained against a federal employee then no penalty need be evaluated. If a federal agency decides to sustain some or a portion of the charges, they will also issue a penalty, i.e. suspension, removal, demotion. The penalty analysis will be governed by Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981). In Douglas, the MSPB held that 12 factors (“Douglas factors”) must be considered when evaluating possible penalties for disciplinary cases involving federal employees.
A federal supervisor is responsible for ensuring that a disciplinary penalty is fair and reasonable. If a penalty is disproportionate to the alleged violation or is unreasonable under Douglas, it is subject to being reduced or reversed by the MSPB, even if the charges would otherwise be sustained. As such, it is a federal agency’s duty to determine its penalty in accordance with the Douglas factors. Furthermore, an agency must give “substantive consideration to a lesser penalty.” Banez v. Dep’t of Defense, 69 M.S.P.R. 642, 650 (1996).
When Does the MSPB Mitigate Disciplinary Penalties?
The MSPB mitigates disciplinary penalties when a penalty exceeds the bounds of reasonableness. While penalty selection is generally a matter of federal agency discretion, the MSPB will review a case to ensure that penalty judgment has been properly exercised. The most typical situation is where a federal employee attempts to mitigate the penalty of removal to something less, like a suspension or demotion action.
In making that type of determination, the MSPB must give appropriate weight to the agency's primary discretion in maintaining employee discipline and efficiency, recognizing that the Board's function is not to displace management's responsibility but to insure that management discretion has been properly exercised. See Brown v. Dep’t of Treas., 91 M.S.P.R. 60, P 7 (2002). Therefore, the MSPB will only usually disturb the agency's chosen penalty if it finds that the agency failed to weigh relevant factors or that the agency's judgment clearly exceeded the limits of reasonableness. See Toth v. USPS, 76 M.S.P.R. 36, 39 (1997).
In assessing the appropriateness of a federal agency's penalty selection, the most important factor is the nature and seriousness of the misconduct and its relation to the employee's duties, position and responsibilities, including whether the offense was intentional or was frequently repeated. See Batts v. Dep’t of Interior, 2006 M.S.P.B. 118, 102 M.S.P.R. 27, P 11 (2006).
The MSPB will modify a penalty when it finds that an agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness. If a deciding official fails to appropriately consider relevant factors the MSPB does not need to defer to the agency's penalty determination. And if the MSPB finds the agency's original penalty to be too severe, it may mitigate it to the maximum reasonable penalty. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). The MSPB may also mitigate to the maximum reasonable penalty when the deciding official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon the penalty. Cunningham v. USPS, 109 M.S.P.R. 402, P 24 (2008).
Recent samples of MSPB cases mitigating disciplinary penalties.
Some recent examples of mitigation at the MSPB follow:
1. Judy v. DOJ, 2015 MSPB LEXIS 3508 (2015) (removal mitigated to 7-day suspension where administrative judge found that deciding official had not given bona fide consideration to the mitigating factors existing in case).
2. Solis v. DOJ, 2015 MSPB LEXIS 4426 (2015) (removal mitigated to 60-day suspension where administrative judge and Board found that the maximum reasonable penalty was a 60-day suspension in light of the appellant's positive performance record, absence of disciplinary history, cooperation during the agency's investigation, and admission of wrongdoing).
3. Seward v. DOD, 2015 MSPB LEXIS 3954 (2015) (removal mitigated to 60-day suspension where administrative judge found that although the sustained charge of sleeping on duty warranted discipline, when weighed against the mitigating factors of the appellant's years of service, his successful performance rating, his medical condition, and his efforts to correct the effects of that condition on his work, the penalty of removal was beyond the bounds of reasonableness).
4. Edmonds v. VA, 2015 MSPB LEXIS 2424 (2015) (removal mitigated to 14-day suspension where administrative judge found that there was no evidence that the offense was intentional, in addition to the fact that the federal employee had 7 years of prior service, an unblemished disciplinary record, good performance and because the agency’s table of penalties appeared to favor a lesser penalty).
5. Davis v. Dep't of the Navy, 2015 MSPB LEXIS 1917 (2015) (removal mitigated to 30-day suspension where administrative judge found that while federal employee had past discipline, that the agency had not proven all of its charges, and the employee held potential for rehabilitation).
Conclusion
When a federal employee is involved in an MSPB appeal, it is important for them to have legal advice and representation. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.