Mitigating Circumstances

Wednesday, June 12, 2013

The Merit Systems Protection Board (MSPB) in the case of Portner v. Department of Justice, 2013 MSPB 28 (April 5, 2013), recently mitigated a Drug Enforcement Administration GS-14 supervisor's removal to a 45-day suspension, finding that the penalty of removal "exceeds the tolerable limits of reasonableness." Portner showed a variety of mitigating circumstances, including long service, good performance before and after the alleged misconduct, stress from personal and professional problems at the time, no impact on his ability to perform duties, and inconsistency with prior, lighter penalties for employees who engaged in equally and even more serious misconduct.

The parties stipulated to the facts surrounding the conduct on which the agency based charges of unauthorized use of an official government vehicle and false statements. The administrative judge sustained the charges, Portner did not challenge those findings, and the Board sustained the charges on review, including finding that there was nexus between the misconduct and the efficiency of the service.

The Board held, however, that the deciding official's decision was not entitled to deference in determining whether the penalty was reasonable because he failed properly to weigh the relevant Douglas factors. In particular, the Board held that the deciding official erred in finding that Portner showed no remorse, when the record in fact showed ample evidence of remorse. Accordingly, the Board conducted its own review and concluded that the penalty of removal was "excessive under the circumstances."

Most notably, in evaluating the inconsistent penalty, the Board noted that three comparator employees were charged with, among others, unauthorized use of a government vehicle, operating one under the influence of alcohol, and conduct unbecoming a DEA special agent, yet they received a 40-day suspension, a 42-day suspension, and a 31-day suspension. The Board said that some of the comparator employees "engaged in other misconduct different from that committed by the appellant," but held that the legal standard required a "reasoned comparison of the totality of the circumstances surround the misconduct engaged in by the comparator employees, as contrasted to the totality of the circumstances surrounding" the appellant's conduct.

That comparison showed that the comparator employees' conduct was "as serious as, and arguably more serious than" appellant's, yet the agency failed to offer a sufficient, legitimate explanation for the discrepancy in penalty. Accordingly, the Board mitigated the removal to a 45-day suspension, finding that that discipline would "impress upon appellant the wrongfulness of his conduct while still within the "tolerable limits of reasonableness."