In 2014 MSPB 79 (October 7, 2014), the Board, over Vice Chairman Wagner’s dissent, sustained the appellant’s removal on charges of AWOL and failure to follow leave restrictions. There was no disagreement among the three Board members that the agency proved these charges. The disagreement among the Board members was whether or not the agency treated the appellant differently than other employees in deciding to remove him, rather than imposing a lesser penalty.

In the view of the majority, the appellant’s allegation that the agency treated him disparately is an allegation of disparate penalties to be proven by the appellant.In discovery, the agency admitted that there were other employees within the immediate supervisory chain who were charged with AWOL and/or failure to follow leave procedures, but who were not terminated.The majority found, however, that those facts were not sufficient to conclude that the agency treated similarly-situated employees differently, and that there were distinguishing factors that led the agency to treat those employees more leniently.For example, the deciding official emphasized that the time-sensitive nature of the appellant’s responsibilities jeopardized the agency meeting its mission and that another employee’s AWOL was less severe.The majority also found that the appellant did not fully avail himself of the discovery process to obtain information related to the disparate penalty issue.Noting that the agency did not provide the appellant with the information he requested, the majority found that the appellant, who was represented by an attorney, had the option of filing a motion to compel the agency to disclose relevant information, but he chose not to do so. As a consequence, the majority found that he did not meet his initial burden regarding disparate penalties and the penalty of removal was affirmed.

Vice chair Wagner vigorously dissented and would have remanded the case back to the administrative judge for further development of the record on the issue of whether the appellant was treated differently than similarly-situated employees.Vice Chair Wagner noted the agency’s own admissions in discovery that there were other employees within the immediate supervisory chain charged for similar offenses who were not terminated. However, the agency refused to provide any information concerning these employees in response to the appellant’s discovery requests.Vice Chair Wagner chastised the majority for concluding that the appellant had not met “his” burden concerning disparate penalties. She found that the majority’s conclusions cannot be reconciled with Federal Circuit or Board precedent which places the evidentiary burden regarding penalty selection on the agency, not the appellant, and which requires such decisions be based on evidence contained in a fully-developed record, rather than on speculation. Vice Chair Wagner found that the majority was treating the attack on disparate penalties as an “affirmative defense” which would place the burden on the appellant, but that was inconsistent with the seminal case of Douglas v. Veterans Administration which makes the penalty determination part of the agency’s burden of proof.

Vice Chair Wagner also found that the majority relied on uncorroborated and vague statements from the deciding official on the issue of consistency of the penalty.Additionally, she found it unsupportable that the majority speculated as to reasons as to why the agency might have imposed different penalties, rather than basing its decision on evidence in the record. While not reaching a conclusion as to how this case also ultimately ought be resolved, Vice Chair Wagner concluded that the case should be remanded to an administrative judge for further proceedings to develop, as fully as possible, the facts relating to the consistency of penalties imposed on similarly situated employees.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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