In Fulks v. Department of Defense, MSPB Doc. No, CB-7121-04-0016-V-1 (September 30, 2005), the Merit Systems Protection Board (MSPB) reviewed an arbitrator’s reduction of a removal penalty, but in so doing, found that the arbitrator had acted in violation of established case law on mitigation authority and further reduced the length of the suspension from 20 months to 120 days.

In this case, the employee had received a proposed 14-day suspension for sleeping on duty. Because the employee demonstrated that his sleeping was caused by his narcolepsy, the agency entered into a settlement whereby the proposal would not be effectuated as long as the employee did not have a recurrence of sleeping on duty in three years. When the employee had a recurrence, the agency effectuated the prior 14-day suspension. The agency also issued a proposed removal based on the new incident.

The employee grieved and arbitrated his removal. The arbitrator ruled that the removal penalty was too harsh because the employee’s sleeping on duty was not intentional, was related to his illness, he had 27 years of employment with the agency and no prior disciplinary action. In mitigating the penalty, however, the arbitrator ordered the employee back to work and that the time he had been off since the removal — 20 months – would be the length of his suspension.

On appeal, the employee argued that the agency was disciplining him twice for the same conduct when it effectuated the prior 14-day suspension and also initiated the removal action based on the same incident of sleeping on duty. The employee also argued that the arbitrator did not properly analyze the mitigation of penalty when he ordered that the length of the penalty should be equal to the time from his removal since that time was based on how long it took to litigate the case and not based on an analysis of what the proper penalty should be.

The MSPB reiterated that an employee cannot be disciplined twice for the same misconduct. However, it rejected the employee’s argument that such was the case here. Rather, the Board held that, through a settlement agreement, the agency was permitted to effectuate a previously proposed suspension because of a recurrence of sleeping on duty. Also, the specific terms of the settlement noted that the employee could be disciplined for a future occurrence of sleeping on duty. Therefore, the Board held that the employee was not being disciplined twice for the same act.

The MSPB agreed with the employee that the arbitrator improperly violated his authority to mitigate penalties. The Board noted that the arbitrator conducted a proper analysis of the Board’s Douglas factors in determining that removal was too harsh and that the penalty of removal should be mitigated to a suspension.

However, the Board overturned the arbitrator’s decision to the extent that it did not critically analyze the length of the suspension, but merely tied it to the time that had transpired from the date of removal to the date of the arbitrator’s decision,. i.e. a “time served” suspension. The Board referred to such calculation as a determination of penalty “by accident.” The Board overruled any prior cases which allowed such a calculation. The Board held that it would not overturn the arbitrator’s decision that the removal should be mitigated, because such decision is not clearly inconsistent with law. Regarding the length of the penalty, on review of the facts in this case the Board held that the maximum reasonable penalty in this case was 120 days – considerably shorter than the 20 months imposed by the arbitrator. This case represents one of the rare instances where a penalty selected by an arbitrator has been reduced on review by the MSPB.

* 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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