A LITTLE-KNOWN DEFENSE IN EMPLOYEE THEFT CASES

Although MSPB said they were just drawing on prior court of appeals decisions, it sure looks like a new defense to us. At a minimum, they added enormous clarity to an idea that was only between the lines in those court decisions.  The employee, a DoD GS-14 Security Specialist, paid for his food at the agency cafeteria and then circled back into the buffet area where he added a couple of things to his lunch. Unfortunately, in a rush to adhere to his diabetic eating schedule, he failed to pay for the $5.00 worth of extras, and even more unfortunately for him the agency security cameras caught this heist in detail. When a manager spotted him making his way to his table to eat, the agency fuzz was called in, surrounded him, and forced a confession out of him. A few weeks later he was removed despite his 30-year unblemished career and the reality that the agency was tossing all that training, experience, and skill out the door over a one-time $5.00 debatable theft. It surprised us how he won his MSPB appeal given that the Board may be the last place on earth, under any White House administration, where common sense and compassion rule the day.

Just to refresh recollections, MSPB will review,

“agency-imposed penalty[ies] only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness. In determining whether the selected penalty is reasonable, the Board gives due weight to the agency’s discretion in exercising its managerial function of maintaining employee discipline and efficiency.”

In this case, it found that the agency was so focused on the alleged ”character flaw” this $5.00 food rip-off suggested that it ignored three Douglas factors, i.e., the de minimis nature of the theft, the appellant’s 30 years of service, and his satisfactory work record are relevant mitigating factors in this case. That opened the door for the MSPB to deny the agency’s penalty choice any deference and develop its own penalty decision.

But the Board appears to have needed a fourth element before it would mitigate the case and it is that element that led the Board to label this a precedent setting case.

The Board wrote, “…another mitigating factor in this case is that the appellant did not have custody or control over the stolen items as part of his official duties. Our reviewing court and the Board have treated this as a significant mitigating factor in cases involving de minimis theft, including cases in which the appellant occupied a position of trust.” If this “custody and control” argument has come up before, the Board failed to cite the foundational cases that so clearly established it.  As best we can tell from this Board decision, the phrase means the employee did not boost something that he was responsible for as part of his official duties. If he had been a cafeteria worker, apparently MSPB would have gone the other way on the custody and control factor.

So, at the end of the day, union reps have one more argument to raise when pleading for penalty mitigation in employee theft cases. For more details check out Calvin Chin, v. Dep’t of Defense, 2022 MSPB 34, Docket No. DC-0752-15-0431-I-1. October 7, 2022.  The Board reinstated him with a 90-day suspension and seven years of back pay.

But before we close, however, we need to point out a fundamental flaw in the way agencies and the MSPB think about discipline penalties.  In this case, despite the triggering event being a one-time $5.00 theft, the agency decided to toss out the window the enormous value this employee. His 30 years of experience, training and skills, were the product of a million-dollar agency investment in him. In contrast, imagine if a manager threw away even a $100,000. piece of agency equipment because a one-time blip by the machine cost the agency half-a-sawbuck. We can imagine it, and when we do we see the Special Counsel swooping to slam the agency for waste, fraud and abuse; a Congressional inquiry tying up agency’s leadership for months; a few adverse media pieces; and a bruising blow to employee morale. Why is it OK to toss out a $100,000 HUMAN resource over a $5.00 error, but so unthinkable to abandon on some city’s mean streets an agency’s high security Suburban SUV with the keys in the ignition just because the windshield wiper blade ripped?

Both are ridiculously easy to repair and the last time we looked the taxpaying public did not want it taxes wasted.