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Disparate Discipline

As employees, one of the most difficult situations that can happen is being charged with wrongdoing. However, even if the employee admits to the charges, the employee does not automatically receive the maximum penalty thanks to a case tried before the Merit System Protection Board (MSPB) in 1981,Douglas v. Veterans Administration (5 MSPR 7037).

Under the Douglas case, 12 factors were established to assist agencies in devising the appropriate penalty for any given situation. The MSPB recognized that not all situations are similar and therefore certain mitigating factors needs to be examined to determine what penalty is appropriate in the range of penalties for each offense. For example, on the FAA’s Table of Penalties a first-time charge of Lack of Candor says the penalty is a 14-day suspension up to a removal. Therefore, in determining whether a suspension is more appropriate than a removal, the FAA is to review the various Douglas factors to raise or lower the penalty within the range. However, in a recent MSPB case the Board reversed its previous stance on what an employee needs to prove in order to demonstrate their discipline is similar to past cases.

Up until last month, in order to prove a previous discipline case was evidence of disparate treatment, an employee had to prove that the previous discipline was in the same work unit, involved the same supervisor, and had the same proposing or deciding official. On May 28, 2010, the MSPB issued a new analysis for proving comparable discipline in Lewis v. Department of Veterans Affairs. (AT-0752-08-0747-B-1). The MSPB decided the grievant no longer has to be in the same unit as the previous person, they did not have the same supervisor, and they did not have the same proposing official. Rather both employees need to be charged with the identical misconduct with a similar fact pattern. Specifically, the MSPB held, “…there must be enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently, but we will not have hard and fast rules regarding the ‘outcome determinative’ nature of these factors.”

Therefore, when employees are faced with discipline, it is incumbent that they request information on employees who have been charged with the same offense and similar fact patterns. Representatives might even ask for discipline cases for the entire bargaining unit or region to see how the FAA has handled similar cases throughout the bargaining unit. This will provide employees with a larger comparator pool and help the employee who may have been in a unique position in their work unit.