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Developments at the MSPB: Mitigation Analysis Clarified

Developments at the MSPB: On June 13, 2014, the Merit Systems Protection Board (MSPB) issued a precedential decision in Chavez v. Small Business Administration, 2014 MSPB 37.  The MSPB upheld the administrative judge's mitigation of Mr. Chavez' removal to a 60 day suspension, and in doing so clarified the proper application of Douglas factor analysis to the reasonableness of penalties.

The agency removed Mr. Chavez on charges of alleged improper use of a government computer to send sexual images and alleged lack of candor in an internal investigation.   Mr. Chavez appealed his removal to the MSPB, and an administrative judge mitigated the removal to a 60 day suspension, finding that (a) the agency erred in denying the deciding official's request for information on penalties imposed on other employees cited for sending improper e-mails in the same administrative investigation, and (b) the deciding official's improper citation to length of service as an aggravating factor under Douglas factor analysis.  The administrative judge also ordered that Mr. Chavez be offered a reassignment.  Both parties then appealed to the full Board.

On petition for review, the MSPB upheld the mitigation of the penalty.  The MSPB found that underlying charges against Mr. Chavez were substantiated.  It found that the agency erred in refusing the deciding official's request for information on comparative penalties against other employees.  In Douglas v. Veterans Administration, 5 M.S.P.B. 313, 331-32 (1981), the Board had identified 12 factors as "generally recognized as relevant" to assessing the appropriateness of the penalty.   As the Board noted in the Chavez decision, "A deciding official does not have to consider each of the Douglas factors in making his penalty determination [...but,] must consider the relevant Douglas factors which implicated by the facts of the case before him."  Douglas factor 6 calls is the "consistency of the penalty with those imposed upon other employees for the same or similar offenses".  The MSPB held that, by denying the deciding official's request for information, the agency prevented him from examining this Douglas factor which Mr. Chavez had raised in his written response to the proposed removal.   While the Board noted that it is improper to use length of service as an aggravating factor under Douglas factor 4, it reversed the administrative judge's holding on point as factually unsubstantiated here.   The Board also reversed the administrative judge's reassignment remedy, as the record contained no fact findings that Mr. Chavez would be unable to perform his prior position if reinstated.

If you are a current federal employee who has received a proposed adverse action, and would like to discuss your rights, please contact the law firm of Passman & Kaplan, P.C. to request a consultation.

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