In Fearon v. Department of Labor, MSPB Doc No. CB-7121-04-0024-V-1, (August 19, 2005), the Merit Systems Protection Board upheld an arbitrator’s decision mitigating the employee’s suspension from 20 days to five days where the employee alleged that no suspension was warranted, even though the arbitrator may have improperly limited the employee’s access to evidence that would have helped her prove that she was being treated differently from other employees. In doing so, the Board reiterated the narrow circumstances in which an argument of “disparate treatment” will lead to a reduction of a penalty.

In this case, the employee received a 20-day suspension for excessive use of a government cell phone for personal business and for failure to follow supervisory instructions. The employee filed a grievance under the union/agency collective bargaining agreement, which ultimately was presented to a neutral arbitrator to decide. The arbitrator sustained the charge of excessive cell phone usage, reversed the charge of failure to follow supervisory instructions, and reduced the 20-day suspension to a five-day suspension. During the grievance process, the union requested information showing cellular phone usage of all employees in the Bureau’s headquarters. The arbitrator limited the access to this information only to the records of employees who were actually disciplined for cell phone usage. The employee claimed that she was denied evidence to allow her to prove disparate treatment, i.e., that she was treated more harshly than other employees who committed the same offense.

The Board reiterated prior rulings that to prove disparate treatment in comparison to other co-workers, employees must be “similarly situated,” meaning they work in the same work unit, with the same supervisors and that the misconduct was substantially similar. However, the Board also reiterated older decisions which held that disparate treatment alone is not enough to set aside a penalty if the penalty is otherwise appropriate to the seriousness of the employee’s offense. There are two exceptions to this rule. The Board will set aside a disparate penalty where the agency’s decision to treat employees differently was “knowing and intentional” and where the agency decides to begin issuing more severe penalties for a certain offense without notice to employees of a change in policy.

Here, the Board noted that the arbitrator may have erred in requiring the agency to disclose only those records of employees actually disciplined because records of employees who engaged in similar behavior but were not disciplined would support the employee’s claim of disparate treatment. Nonetheless, the Board held that any such error was not wrong as a matter of law because the five-day penalty the arbitrator ultimately imposed was appropriate to the offense and the employee did not establish that either of the two exceptions, requiring that the penalty be set aside because of disparate treatment, applied in this case to overturn the penalty. This case points out the difficulty in overturning agency penalties.

The MSPB had jurisdiction to review the arbitrator’s award solely because the employee alleged that her suspension was a product of illegal discrimination. Such an allegation gives the MSPB jurisdiction to review an arbitration award which is otherwise nonreviewable by the Board.

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