A Homeland Security Agent was fired for falsifying an official form.  When he tried to defend himself by pointing out how supervisory employees who committed the same offense were not fired, DHS management and the MSPB Judge would not let him see that evidence.  The terminated employee appealed, and got not only the information but another chance to prove his defense.

This case involves yet another MSPB ruling about what is a “similarly situated” employee.  FEDSMILL has written about this changing are of law often over the last year.  Check out “Similarly Situated Concept Expanded Again,” “Turning Tables of Penalties on Management,” and “Discipline’s ‘Disparate Treatment’ Defense.”  This is a big deal for federal employees.

In this latest case (Figueroa v. DHS, 2013 MSPB 33 (2013)) the accused employee requested the following information to defend himself:

All proposal notices, decision notices, settlement agreements, arbitration awards, last chance agreements or firm choice agreements relating to disciplinary and/or adverse action cases within the Agency nationwide for the past five years relating to any allegation of “Falsification” and/or similar allegations as those in this issue in this appeal for any Agency employee, including supervisors. Please include all settlement agreements. The documents may be provided in sanitized format.

DHS management refused calling his request “overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.”  When the agency upheld the termination and the employee appealed, the MSPB judge agreed. 

However, when the employee appealed to the full MSPB, the Board was obviously frustrated that neither this judge nor agencies seem to get it yet that it has made a big change in an accused employee’s right to get disciplinary information about “similarly situated employees. 

The Board began by saying, “What constitutes relevant information in discovery is to be liberally interpreted, and uncertainty should be resolved in favor of the movant absent any undue delay or hardship caused by such request. . . . The scope of discovery is broad: ‘[d]iscovery covers any nonprivileged matter that is relevant to the issues involved in the appeal . . . .’”

The Board then reiterated the test its judges and agencies must apply when accused employees request information about other employees: “. . . 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.”

Finally the Board applied that test to the facts of this employee’s case and held, “We find that the appellant’s document request relating to potential comparator supervisory employees was reasonably calculated to lead to the discovery of admissible evidence. Specifically, if the appellant could show that supervisory employees – who are held to a higher standard were treated less harshly by the agency than the agency treated the appellant for similar misconduct, the appellant would have met his disparate penalty burden and triggered the agency’s burden to explain the difference in treatment.“

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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