How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
The Board has long held that in order to ensure that penalties are reasonable, same or similar offenses should be treated in a similar manner.1 To establish that penalties are disparate, an appellant must show that the charges and the circumstances surrounding the charged behavior are substantially similar to those of a comparator employee.2 Proof that the proffered comparator was in the same work unit, with the same supervisor, and was subjected to the same standards governing discipline can help an appellant to make an initial showing that the charges and the circumstances surrounding the charged behavior are substantially similar.3 However, these are factors to be considered, not hard-and-fast mathematical calculations.4
If an appellant makes an initial showing that there is enough similarity to lead a reasonable person to conclude that the agency treated similarly situated employees differently, then the agency must prove that it had a legitimate reason for the difference in treatment between employees.5 Board case law demonstrates how important it is for the agency to be prepared to articulate before MSPB the reasons why the case at issue is different from the comparator cases.6
One factor that can weigh heavily is the type of position that is held by the employees being compared. For example, it is well established that law enforcement officers can be held to a higher standard of conduct than other federal employees.7 Similarly, agencies are entitled to hold supervisors to a higher standard than non-supervisors because they occupy positions of trust and responsibility.8 However, even the ability to hold certain positions to higher standards is not always dispositive. Every case will be considered on its own merits.
For example, in Chavez v. Small Business Administration, the appellant claimed that his penalty was too harsh because an allegedly comparable employee was not as severely disciplined. However, the Board found that differing penalties were justified because: (1) a two year lapse in time between the impositions of penalties weakened the comparison; (2) the employees were disciplined by different agency officials and worked in separate chains of command within the agency; (3) the employees had different responsibilities; and (4) the appellant was found to have committed additional offenses not committed by the comparator employee.9
In Davis v. U.S. Postal Service, the Board found differing penalties were permissible, in part because an agency is permitted to provide evidence that the penalty previously implemented for a similar offense was too lenient. In Davis, a non-supervisory employee made extremely hostile statements to a supervisor. The employee was removed and filed an appeal in which he claimed disparate penalties because a manager who also made hostile remarks in the workplace was not removed. The agency then provided MSPB with evidence that the appellant’s unacceptable conduct, unlike that of the manager, placed employees in fear for their safety. Moreover, the agency specified that the appellant’s unacceptable conduct violated the agency’s zero tolerance policy, unlike that of the manager. The agency also showed that the manager had approximately 29 years of service with the agency, in contrast to the appellant’s 6 years of service. Additionally, the deciding official credibly testified that, had he been the official for the comparator case, he would have removed that employee as well. By presenting this evidence to the Board and explaining its reasons, the agency proved that it had a legitimate reason for the difference in treatment between these employees and the Board sustained the removal.10
In contrast, in Williams v. Social Security Administration, it appeared that the agency was more lenient with an employee who perpetrated a tax fraud than it was with an employee who, in the words of the court, “merely had participated in it.” The employee who committed the lesser offense had “worked for six years since the misconduct and done an excellent job. . . [with] no problems” prior to the agency implementing the penalty. The court explained that, “[w]hile the fact that two employees are supervised under different chains of command may sometimes justify different penalties, in this case” that alone would not be adequate justification for disparate treatment. The court noted that while the Government’s counsel later tried to justify the agency’s actions, in the “record before the Board, which is the only record we have” the agency did not explain the justification for treating the lesser offense more seriously.11
The Board has set forth a list of 12 factors to be considered when determining a penalty,12 and the more these factors differ, the more the situations may not be as similar as they appear at first glance. Decades of case law show that just because two cases have some commonalties does not mean that the agency will be unable to explain why they are different, justifying different penalties. But, if an action is appealed to MSPB, agencies may be required to make those explanations and submit a record showing that when penalties differ, it is because the situations were not similar after all.
Agencies may encounter situations in which officials consistently provided greater leniency in the past than the agency wishes to permit in the future for similar offenses. In such cases, the primary distinction between new offenses and the comparator cases would be a change in agency policy rather than differences in the employees or the offenses. The Board has explained that an agency can implement more stringent penalties in the future than it has in the past, provided that it notifies its employees of the change in policy.13 Many agencies also use a table of penalties to explain general ranges of discipline that the agency considers appropriate for various offenses to provide some consistency within the agency. As with other agency policies, tables of penalties can be modified.
Agency officials are not rendered powerless by what other officials have done in the past when the new officials properly communicate with their workforces, explaining any policy changes. Policy changes may not even be required, if the agency finds its actions warranted by the unique conditions of individual cases and officials are prepared to explain why new situations have different circumstances. Whether it is setting forth new policy to the workforce or explaining the reasons why individual circumstances are not similar, agency communications are crucial to addressing differences in penalties.
1 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981).
2 Archuleta v. Department of the Air Force, 16 M.S.P.R. 404, 407 (1983). A discrimination claim of disparate treatment is an affirmative defense and is a separate matter from an allegation of disparate penalties. Munoz v. Department of Homeland Security, 121 M.S.P.R. 483, ¶ 14 (2014). When an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e–16, the adjudicator first will examine whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Such a showing is sufficient to establish that the agency violated 42 U.S.C. § 2000e–16, thereby committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). If the appellant meets his burden, the adjudicator then will inquire whether the agency has shown by preponderant evidence that the action was not based on the prohibited personnel practice, i.e., that it still would have taken the contested action in the absence of the discriminatory or retaliatory motive. If the adjudicator finds that the agency has made that showing, its violation of 42 U.S.C. § 2000e–16 will not require reversal of the action. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 51 (2015).
3 Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010).
4 For example, while the fact that two employees are supervised by different individuals may sometimes justify different penalties, an agency may be required to explain why differing chains of command would justify different penalties. Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 22 (2012).
5 Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 11 (2014). If the circumstances cited by the agency justify a harsher penalty on the appellant than on the comparator(s), but do not justify the penalty imposed by the agency on the appellant, the Board will mitigate the penalty to the maximum reasonable penalty. Id.
6 See, e.g., Portner v. Department of Justice, 119 M.S.P.R. 365, ¶ 21 (2013) (explaining that the agency did not offer a sufficient explanation for the significantly harsher penalty given to the appellant versus that given to the comparator); Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 24 (2012) (concluding that the agency failed to offer a persuasive explanation for why penalties should differ between the appellant and a comparator); Woebcke v. Department of Homeland Security, 114 M.S.P.R. 100, ¶¶ 21-22 (2010) (holding that the administrative judge acted properly when concluding that the agency failed to prove by preponderant evidence that there was a legitimate reason for a difference in how similar offenses were punished); Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶¶ 16-17 (2010) (discussing the deciding official’s testimony regarding how this case was different from a comparator case).
7 Watson v. Department of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995); Phillips v. Department of the Interior, 95 M.S.P.R. 21, ¶ 16 (2003), aff’d, 131 F. App’x 709 (Fed. Cir. 2005).
8 Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010). See Gebhardt v. Department of the Air Force, 99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 180 F. App’x 951 (Fed. Cir. 2006).
9 Chavez v. Small Business Administration, 121 M.S.P.R. 168, ¶¶ 21-24 (2014).
10 Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶¶ 2-4, 9, 8-9, 14-16 (2013).
11 Williams v. Social Security Administration, 586 F.3d 1365, 1368-69 (Fed. Cir. 2009). The court remanded Williams back to the Board to permit further development of the record regarding the agency’s actions. However, in general, once the record closes, no additional evidence or argument will be accepted unless it is new and material and the party submitting it shows that, despite due diligence, the evidence or argument was not readily available before the record closed. 5 C.F.R. §§ 1201.114(k), 1201.115(d). It is therefore extremely important that the agency initially develop the record properly. (Decisions of the U.S. Court of Appeals for the Federal Circuit are controlling authority for the Board, whereas other circuit courts’ decisions are persuasive, but not controlling, authority. Fairall v. Veterans Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987)).
12 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981).
13 Parker v. Department of the Navy, 50 M.S.P.R. 343, 354-55 (1991); Tucker v. Veterans Administration, 11 M.S.P.R. 131, 132–33 (1982). See Social Security Administration v. Mills, 73 M.S.P.R. 463, 473 (1996) (holding that the appellants “were notified in advance” of the agency’s policy), aff’d, 124 F.3d 228 (Fed. Cir. 1997) (Table).