Not long ago MSPB overturned an adverse action because of a mistake management made using its own table of penalties to set the penalty.  The mistake was not an obvious one.  We want to call it to your attention so you can look for it.  

The employee was charged with an offense that was not specifically listed in the agency’s table of penalties.  When the deciding official was finalizing the penalty to be imposed, she considered what she thought was the closest kind of infraction and imposed the penalty recommended for that rule violation. The employee and Board only learned of this use of the table when the deciding official testified at the appeal hearing that she used it to choose a penalty.  That may seem reasonable to the average person, but as far as MSPB is concerned it is a violation of the employee’s Constitutional due process rights because-

The appellant did not have an opportunity to respond to that aspect of the agency’s table of penalties. We find that the agency’s reliance on the recommended penalty for a charge other than those set forth in the notice of proposed removal cannot fairly be deemed cumulative or immaterial to the deciding official’s decision. We therefore conclude that the agency violated the appellant’s due process rights by denying her notice of the specific information considered and an opportunity to respond. (See Jenkins v. EPA, 118 MSPR 101, (May 4, 2012))

So, for all those union reps out there who represent disciplined employees check the decision letters to see if there is any mention of the table of penalties or any other fact which was not included in the notice of proposed action.  For example, if the deciding official mentions in the decision letter that she considered the penalties imposed in similar cases or some agency policy about the infraction those would likely be due process violations.  Similarly, this case underscores how important it is in a hearing to cross-examine the deciding official to have her explain in great detail the thought process she used to reach her decision.  If she blurts out consideration of some fact never before mentioned, the employee may have a similar due process violation.

About AdminUN

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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