DISCIPLINE’S “DISPARATE PENALTIES” DEFENSE
MSPB just issued a decision that should help unions successfully represent disciplined employees. It clarified, and some say expanded, the union’s ability to argue that any penalty must be mitigated, if not totally overturned, if the agency’s uses disparate penalties.
The new decision is entitled Boucher v. Postal Service, 2012 MSPB 126 and the Analysis section opens with a simple statement of spelling out the specifics of the disparate penalties defense.
To establish disparate penalties, the appellant must show that there is “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 the Board will not have hard and fast rules regarding the ‘outcome determinative’ nature of these factors.”
If the employee does establish “enough similarity,” the agency must prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld. To date, the Board has not specified the elements of similarity, leaving union reps to read the half-dozen recent MSPB and court decisions to find the path. FEDSMILL.com posted a piece about similarly situated earlier this year that should also help you build the defense. See Similarly Situated Concept Expanded Again.
This case involved two employees who were charged with possession of illegal substances during duty hours, namely, drugs. When Boucher, who was terminated, claimed that she was similarly situated with another employee who received no disciplinary penalty, the agency disagreed for five reasons: 1- the two employees possessed different drugs, 2- Boucher was arrested on government property and during duty hours while the other employee was arrested during non-duty hours and not at a Postal worksite, 3- the other employee’s arrest did not generate the publicity in the community that Boucher’s arrest did, 4- the other employee’s case was over four years old, and 5- there were different deciding officials in the two cases.
The Board dismissed these arguments with these rebuttals. Although Boucher possessed more serious drugs than the other employee the circumstances of his arrest were more serious, i.e., he smuggled them into a prison. Moreover, employees need not work under the same supervisor to allege a disparate penalty defense. Indeed it noted that it is the agency’s burden to prove that different chains of command justify different penalties. Finally, it found the four-year time gap irrelevant.
While the MSPB in this case merely reduced Boucher’s removal to a 90-day suspension, it warned agencies that it had the right to deny their penalty and deference and prohibit any penalty at all.
. . . under Douglas, agencies are required to consider, in determining an appropriate penalty for employee misconduct, the consistency of the penalty with those imposed upon other employees for the same or similar offenses). Indeed, a deciding official’s failure to consider this Douglas factor could result in the agency’s penalty determination being entitled to no deference at all.
The Boucher precedent suggests that once discipline is proposed the union should ask the agency for a record of all disciplinary actions in the last several years—at least– covering whatever portion of the organization you consider appropriate. For example, if a union represents the agencies employees throughout the country, a nationwide request would seem to be appropriate. Ask specifically for the employee’s grade, job title, organizational location, geographic location, charges, date of charges, supervisor, reply official, and deciding official at a minimum. Let the agency know that you may want even more details on some specific cases once you review those facts. Then start drawing comparisons.
If the union requests this data in order to make a reply, the agency should delay the reply until it has provided the information and reasonable time to review it. If not, it likely commits a harmful error.
If the agency rejects the disparate penalty defense, check the decision letter for why. Often, you will find when an agency rejects this or any other a defense raised at the reply stage that its decision letter reveals a factor it was holding against the employee from the beginning that it never mentioned in the original letter of charges. That also is likely to be harmful error. Check out the FEDSMILL posting, “Turning Tables Of Penalties On Management” for more advice on how to raise this harmful error allegation.
The Board wrote in its Boucher decision that an agency is free to change the penalty is has imposed in the past for an offense. However, if the employees are organized, that change cannot be made until after the agency has formally notified the union and completed bargaining. If management uses the increased penalty before then, it has committed a ULP.
Finally, unions should also investigate whether there is a race, age, gender, religion, national origin, disability, or any other protected class difference between the employee it is currently defending and a previous similarly-situated employee. That could give it grounds for also alleging that the employee is the victim of discrimination. Smith v. LaHood, EEOC, March 21, 2012 spells out the employer’s obligation to use consistent penalties.
