REMOVAL MITIGATED FOR DE MINIMIS INCIDENTS

STEWARD ALERT!     A recent MSPB decision gives unions a valuable precedent to use when defending employee against discipline or removal.  In this case (Raco v. SSA, (9/29/11)), the agency removed the employee for 22 alleged incidents of incorrectly completing her credit hour time card. 

SSA said that was “conduct unbecoming a federal employee.”   It apparently did not charge her with falsifying the document because it could not prove intent.  MSPB rejected management’s accusations saying, “. . . 19 of the 22 incidents involved variances of less than 5 minutes. Indeed, one discrepancy was for three-quarters of a minute.  Additionally, the agency acknowledged that the clocks throughout the building were not all synchronized, so minor variances in time could be explained by a difference in the timekeeping devices throughout the building. We find that such slight differences do not support any penalty at all, even if they did occur repeatedly, particularly because the appellant was not warned that such insignificant differences in time amount to a violation of any agency policy or subject the appellant to disciplinary action.”

The Board further noted that SSA failed to appropriately consider the nature of the discrepancies in its Douglas factors analysis, agreed with its ALJ that Raco’s 20 years of successful service was a mitigating factor, and found that Raco had been remorseful. Consequently, it held that such facts called for no more than a 14 day suspension.

Frankly, that still sounds overly harsh to FEDSMILL.com, but at least the employee got her job back. This gives unions a good case to point to when arguing other violations are de minimis.  It is also a good recent discussion of how the Douglas factors are to be applied. Stewards should put this case on the list of one’s it wants to remember when defending an accused employee.