U.S. Merit Systems Protection Board 
Case Report for November 16, 2012

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Appellant:  Maria Theresa Boucher
Agency:  United States Postal Service
Decision Number:  2012 MSPB 126
Docket Number:  AT-0752-10-0453-B-1
Issuance Date:  November 15, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Law of the Case
Disparate Penalties

    The agency petitioned for review of a remand initial decision that mitigated the appellant’s removal to a 90-day suspension.  In 2007, the appellant, a Mail Handler, was arrested, along with a co-worker, on charges of possession of cocaine and marijuana.  It was undisputed that she was on her lunch break with the co-worker in his car near his worksite when they were arrested for having cocaine and marijuana in the car.  The appellant's indefinite suspension based on that arrest was sustained on appeal to the Board.  In an initial decision that became the Board's final decision, the administrative judge rejected the appellant's contention that her removal penalty was disparate compared to another employee, Dock McCainey, who was arrested in November 2004 and charged with bringing contraband into a correctional facility, and whose emergency suspension was undone in a settlement agreement of a grievance.  The judge found in this regard that the appellant failed to show that McCainey engaged in substantially similar criminal activity.  

     After the appellant was convicted on unlawful possession of a controlled substance, the agency removed the appellant on charges of felony conviction for unlawful possession of a controlled substance and improper conduct.  On appeal, the administrative judge issued an initial decision finding that the agency proved its charges, nexus, and the reasonableness of the penalty.  The judge rejected the appellant's contention that she was treated disparately compared to the co-worker, who the appellant alleged "was allowed to retire" on disability prior to his removal.  On petition for review, the Board affirmed the administrative judge's findings that the agency proved its charges, that the removal action promoted the efficiency of the service, and that the penalty of removal was reasonable.  The Board found, however, that the administrative judge erred in failing to inform the appellant of the burdens and elements of proof on her discrimination claims, and remanded the case to the regional office for adjudication of those claims.  On remand, the judge ruled that she would reexamine the issue of whether a disparate penalty was imposed in addition to whether the appellant was subjected to sex discrimination.  The reason for allowing relitigation of the disparate penalty claim was new evidence which showed that the agency did not discipline McCainey based on his guilty plea to the charge of bringing contraband (a marijuana cigarette) into a state prison.  Although the judge found that the appellant did not prove her claim of sex discrimination, she found that the removal penalty was disparate compared to the agency's treatment of McCainey, and mitigated the penalty to a 90-day suspension.

     On petition for review, the agency contented that the appellant should be precluded from relitigating the disparate penalty claim under the law of the case doctrine.  It argued in the alternative that the judge erred in mitigating the penalty because the charges and the circumstances surrounding the behavior of McCainey and the appellant were not substantially similar.  

Holdings:  A majority of the Board, Member Robbins dissenting, affirmed the initial decision, finding that the removal penalty was improperly disparate compared to the agency's treatment of McCainey, and that a 90-day suspension was the maximum reasonable penalty under the circumstances:

1.  The judge did not err in relitigating the reasonableness of the penalty.

a.  Under the law of the case doctrine, a decision on an issue of law made at one stage of a proceeding becomes a binding precedent to be followed in successive stages of the same litigation.

b.  Two exceptions to the law of the case doctrine apply here.  First, there is material new evidence that the agency did not submit during the initial adjudication of the appellant’s removal appeal, i.e., that McCainey was convicted of a drug-related offense but was not subsequently disciplined.  Second, a manifest injustice would result from a failure to reconsider the appropriateness of the penalty under these circumstances.

2.  The judge did not err in mitigating the penalty.

a.  To establish disparate penalties under Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), an appellant must show that there is "enough similarity between both the nature of the misconduct and the 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."  If she does so, the agency must prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld.

b.  The agency argued that the charges and the circumstances surrounding the behavior of McCainey and the appellant were not substantially similar for several reasons.  First, McCainey was charged only with possession of marijuana, whereas the appellant was charged with possession of both cocaine and marijuana. Second, the appellant's misconduct occurred while she was still on duty, her arrest took place near agency property, and she possessed illegal drugs while on government property. McCainey's misconduct and arrest took place while he was off duty and did not occur near the worksite. Third, the appellant's misconduct was publicized, as her arrest was reported on television and in the newspaper, while McCainey’s arrest did not garner any publicity.  Fourth, the appellant's misconduct took place more than three years after McCainey's and her conviction occurred more than five years after McCainey's guilty plea. Fifth, the deciding officials were different in the two cases.

c.  While the fact that two employees are supervised by different individuals may sometimes justify different penalties, an agency must explain why differing chains of command would justify different penalties. In this case, the agency has not shown why the different chains of command would justify no penalty for McCainey, but removal for the appellant. Further, both individuals were charged with comparable offenses. Although the appellant was charged with possession of a more serious drug than McCainey, his offense was a more serious act, in that he attempted to smuggle marijuana into a prison facility. Although there were several years between the offenses committed by McCainey and the appellant and there were variances regarding publicity and the type of drug involved, the Board agreed with the judge that the agency failed to explain, by preponderant evidence, why McCainey received no discipline, but the appropriate penalty for the appellant was removal.

3.  The majority opinion addressed and rejected the arguments raised in Member Robbins' dissent for reconsidering the recent decisions in Lewis and similar cases.  

     In his dissent, Member Robbins expressed the view that it was improper to mitigate the agency's penalty because the deciding official considered the relevant factors and the removal penalty did not exceed the bounds of reasonableness.  Consideration of McCainey as a comparator was improper because his discipline was resolved in a settlement agreement that resolved a grievance, and evidence that the agency settled some other case is inadmissible for purposes of assessing the reasonableness of the penalty in this one.  Even if consideration of McCainey as a comparator was appropriate, Mr. Robbins explained why he did not believe the charges and the circumstances surrounding the behavior of McCainey and the appellant were substantially similar.  Finally, Member Robbins expressed the view that the Board had improvidently relaxed the test for impermissible disparity in penalties, and that the Board should reconsider its rulings in Lewis, Villada v. U.S. Postal Service, 115 M.S.P.R. 268 (2010), and Woebcke v. Department of Homeland Security, 114 M.S.P.R. 100 (2010).  In his view, the rulings in those cases were not required by the Federal Circuit's decision in Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009), which was inconsistent with prior Federal Circuit panel decisions, which emphasized that 5 U.S.C. chapter 75 is intended to guard against agencies "knowingly" treating similarly-situated employees differently.  He expressed the concern that the Villada-Woebcke-Lewis trilogy attempts to promote a universal consistency in penalty setting, without identifying any legitimate individual interest or broad value under the Civil Service Reform Act that is being promoted.  The consistency called for under this trilogy might be rooted in an earlier disciplinary decision that was unwise, meaning that a manager would be forced to go easy on an employee who committed serious misconduct because of the unwarranted leniency of some other manager in the past. In his view, this trilogy also raises the specter of agencies now needing to maintain massive nationwide databases of past adverse actions to consult whenever setting a penalty.

Appellant:  Gale Anderson Fletcher
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 125
Docket Number:  DC-844E-12-0086-I-1
Issuance Date:  November 9, 2012
Appeal Type:  FERS - Employee Filed Disability Retirement

Jurisdiction - Disability Retirement

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  The appellant applied for disability retirement benefits based on a number of medical conditions.  OPM approved her application on the basis of only one claimed condition, chronic obstructive pulmonary disease.  The appellant thereafter sent numerous letters to OPM requesting that it amend its determination so as to include her other claimed disabilities, which OPM denied.  The appellant reiterated her requests in her appeal to the Board.  The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, in part, on the ground that no legal authority provides for an appeal of OPM's decision not to amend the medical conditions that formed the basis for an approved disability retirement.  

Holdings:  The Board affirmed the initial decision.  The Board's jurisdiction over final OPM decisions such as this one derives from 5 U.S.C. 8461(e)(1), which provides that "an administrative action or order affecting the rights or interests of an individual" under the law governing retirement in the federal government is appealable to the Board.  The Board interpreted this language as meaning that its authority extends only to OPM actions or orders that adversely affect an individual's rights or interests under federal retirement law.  The Board lacks jurisdiction over this appeal because the appellant failed to show how OPM has adversely affected her rights or interests under the law.  


The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the followings cases:

Joseph v. Department of Homeland Security, No. 2012-3156 (Nov. 9, 2012) (MSPB Docket No. AT-1221-11-0202-W-2) (affirming the Board's decision, which denied Joseph's request for corrective action in this IRA appeal)

Warren v. U.S. Postal Service, No. 2012-3147 (Nov. 9, 2012) (MSPB Docket No. DC-0752-10-0530-B-1) (affirming the Board's decision, which sustained the agency's removal action)

Glasser v. Merit Systems Protection Board, No. 2012-3146 (Nov. 9, 2012) (MSPB Docket No. NY-0752-11-0236-I-1) (affirming the Board's decision, which dismissed Glasser's appeal as untimely filed)

Smets v. Department of the Navy, No. 2012-3047 (Nov. 14, 2012) (MSPB Docket Nos. SF-0432-10-0699-I-1 and SF-1221-11-0039-W-1) (affirming the Board's decision, 117 M.S.P.R. 164, which affirmed the initial decision in these two appeals, which denied Smets's request for corrective action in the IRA appeal challenging the proposal to remove him, and which sustained the agency's chapter 43 removal action) 

Rodriguez v. Department of Justice, No. 2012-3040 (Nov. 14, 2012) (MSPB Docket No. NY-0752-10-0081-I-1) (affirming per Rule 36 the Board's decision, which sustained Rodriguez's removal for misconduct)

Woods v. U.S. Postal Service, No. 2012-3058 (Nov. 15, 2012) (MSPB Docket No. DC-0752-10-0300-I-1) (affirming per Rule 36 the Board's decision, which sustained Woods's removal for misconduct)

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