The Merit Systems Protection Board recently held that an agency may not knowingly treat one employee differently from similarly situated employees with respect to penalties for misconduct, unless it decides to change its policy on penalties, and gives appropriate notice of such a change. Taylor v. Department of Veterans Affairs, 112 MSPR 423 (October 2, 2009).

In October 2008, the Department of Veterans Affairs’ Office of the Inspector General conducted an audit of a number of regional claims offices. The audit revealed that the shred bins in each of the offices audited contained documents from veterans’ benefits claims. As a result of this finding, the agency ordered a halt to all shredding and provided its employees with oral and written instructions regarding what kinds of documents employees could appropriately place in shred bins. The agency also directed supervisors to inspect shred bins in their offices to ensure that agency employees did not inappropriately shred claims documents.

Kyle Taylor worked for the Department of Veterans Affairs as a claims assistant. As a result of the newly-mandated inspections, the agency discovered claims-related documents in Taylor’s shred bin, and began an administrative inspection into his possible misconduct. The agency alleged that Ms. Taylor had placed over 50 claims documents in his shred bin and removed him from his job.

Taylor appealed the agency’s decision, and the MSPB administrative judge sustained his removal. Taylor filed a petition for review, alleging that even if he did commit the misconduct of which the agency accused him, the agency had imposed too harsh a penalty. Taylor noted that removal exceeded the recommended penalty prescribed in the agency’s table of penalties for sustained misconduct. However, the Board found that because the table acted only as a non-mandatory guideline, failure to follow the table alone did not make Taylor’s removal improper.

Taylor also argued on appeal that by removing him, the agency treated him differently from other similarly-situated employees. Taylor presented evidence that two other agency employees, who had committed similar misconduct by placing claims documents in their shred bins, received only suspensions without pay. The Board noted that it would only reverse the removal if the agency had knowingly treated similarly situated employees differently, or had decided to change its policy regarding the appropriate penalty for placing claims documents in shred bins without giving appropriate notice to employees. The Board found that the agency failed to provide a legitimate reason for imposing the penalty of removal on Taylor while other employees received much more lenient penalties for similar misconduct. As a result, the Board mitigated Taylor’s removal and instead imposed a 30-day suspension.

This case sends a very clear message to agencies that they must keep a uniform standard of penalties. Even if, standing alone, an individual’s misconduct warrants a particular penalty, the agency may not impose that penalty if it has imposed less rigorous penalties on other similarly situated employees for like misconduct.

* 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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