TEST YOUR ADVERSE ACTION DEFENSE KNOWLEDGE

The MSPB has held that an agency is obligated to impose similar adverse action penalties on similarly situated employees. But that does not mean comparison between any two employees works   Here are the facts from a brand new Board decision that turned on whether the downgraded supervisor’s case was similar to that of another recently disciplined manager who only received a reprimand.  See if you can predict the correct outcome of the case.

The downgraded supervisor, Ellis, who appealed to the Board, had been charged with “Misrepresentation of Mail Volume Reports.” The Board found that he was guilty as charged, but the employee claimed that his agency had excessively punished him given that another supervisor had done something very similar and was only given a letter of warning and reassignment. The other supervisor was identified as RLB in the MSPB decision.

RLB was charged with “Misrepresentation of Employee Work Records” for intentionally entering incorrect information into a database so as to make their employees appear more productive than they were and thereby bolster their own image as supervisors. The proposal letter cited 18 U.S.C. § 1001, the statute that criminalizes intentional falsification of government records. The decision letter found the supervisor guilty of the alleged Misrepresentation charge and stated that RLB, “did not accept responsibility for having misrepresented the time allotted for carrier duties when given the opportunity during questioning.”

When Ellis claimed that case to be similarly situated to his, the agency put managers on the stand to testify that RLB’s “intent was to give an accurate picture of what happened on the carriers’ routes,” and that he “did not realize that inputting this information into DOIS was wrong.” The testifying manager likened the difference between the misconduct by those supervisors and the appellant’s misconduct as akin to the difference between manslaughter and murder. Similarly, the deciding official testified that RLB believed that he “was properly giving credit to the carriers and that, although RLB later understood that what RLB had done was wrong, RLB had not understood this at the time of the misconduct.”

Ellis pointed out that the testimony conflicted with RLB’s actual discipline records, that both cases were decided by the same deciding official, and within a few months of each other.

What do you think the Board did with this case? Here is its general rule on the similarly-situated defense:

 “. . . to establish disparate penalties, the appellant must show that there is enough similarity between both the nature of the misconduct and 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.”

The Board has also said the following:

“The fact that the two individuals had different supervisors did not prevent them from being deemed similarly situated, we reasoned, because ‘all of the people involved in the decision-making process, including Plaintiff’s immediate supervisor and the department manager, were well-aware of the discipline meted out to past violators, including [the non-protected employee], who had violated the policy on at least two occasions.’”

FEDSMILL.com has covered the topic repeatedly in such posts as Discipline’s ‘Disparate Treatment’ Defense.

The Board held that the managers’ testimony at the hearing about RLB’s lack of intent to misrepresent “cannot be squared with the deciding official’s letter of decision in RLB’s case and the underlying proposal notice, which, like the appellant’s, charged RLB with ‘Misrepresentation’ and cited 18 U.S.C. § 1001, the statute that criminalizes intentional falsification of government records. See IAF, Tab 12 at 11-15. That the deciding official sustained the Misrepresentation charge against RLB necessarily meant that she was finding that RLB had an intent to deceive.”

The Board also said that any suggestion that Ellis’s case differed from RLB because Ellis arrogantly denied of all responsibility and lacked remorse for having inflated mail volumes also was not accurate. It pointed that that RLB’s decision letter included a statement that RLB “did not accept responsibility for having misrepresented the time allotted for carrier duties when given the opportunity during questioning.”

As a result, the Board reversed the downgrade and held that the maximum reasonable penalty in this case was the same type of punishment imposed on RLB—a letter of warning, in lieu of a 14-day suspension, and a geographic reassignment within the local commuting area. (See Ellis, 2014 MSPB 73)

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FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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