The case involved the removal of a prisons employee for improper contact with a former inmate, and where an arbitrator only upheld one of two charges. Image: Robert V Schwemmer/Shutterstock.com
By: FEDweek StaffWhen only some of the charges that underlay a disciplinary action against a federal employee are upheld on review, the deciding official should not simply defer to the agency’s choice of penalty, a federal appeals court has held.
In case No. 2022-1575, the Court of Appeals for the Federal Circuit returned to an arbitrator a case where the arbitrator upheld only one of the two grounds the Bureau of Prisons cited in removing an employee on grounds of improper contact with a former inmate. The arbitrator affirmed a charge of violation of anti-fraternization policy but did not sustain a charge of failure to report such a relationship, finding that the employee at first did not know of the other person’s former incarceration and reported it as soon as she did learn of it.
The arbitrator nonetheless upheld management’s decision to remove the employee, saying the agency was entitled to deference. But on appeal, the court said that in that situation an arbitrator is “required to independently determine the maximum reasonable penalty to be imposed.”
That must be done, it added, by analyzing the so-called Douglas factors, a list of considerations that may work in favor or against the employee. In this case, it said, the analysis of those factors “amounted to nothing more than a deferential review” of management’s decision, where the arbitrator “is the one who must determine the maximum penalty” if all the charges are not sustained.
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