Standards for Reviewing Penalties

In Lewis v. Dept. of Veterans Affairs, 2010 MSPB 98 (May 28, 2010), the Merit Systems Protection Board broadened the definition of "similarly situated" employee when reviewing disparate penalties meted out to different employees. The result is that agencies now have a higher burden of proof in sustaining a penalty where a lesser penalty has been given to some other employee for similar offenses.

In Lewis, the employee was removed for leaving a patient unattended; the patient was on one-to-one observation and was not to be left alone. At his MSPB hearing, Lewis presented evidence showing that at least one other employee was charged with the same infraction, but that other employee only received a written counseling memo. The administrative judge sustained Lewis's removal notwithstanding the disparate penalties because Lewis did not work in the same unit as the other employee, did not have the same supervisors, and the proposing officials in each case were different.

The Board reversed the administrative judge's decision sustaining Lewis's removal, broadening the definition of "similarly situated" employee and modifying a prior line of inconsistent Board decisions. The Board noted that, in the past, it viewed factors such as whether the employees were in the same work unit, had the same supervisor and/ or deciding officials, and whether the offenses were committed relatively close in time, as "outcome determinative." If the "comparator" was not in the same work unit, the Board had previously held that there could be no determination that disparate penalties were imposed.

However, in Lewis, the Board announced a new approach. While the Board holds that there must be "enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently," the Board now holds that it "will not have hard and fast rules regarding the 'outcome determinative' nature of these factors." The Board will also examine other factors, such as "whether the difference in treatment was knowing and intentional," and whether the agency began levying a more severe penalty for a certain offense without notice to employees. Again, under the new Board holding, these factors will not be "outcome determinative."

Turning to the specific facts of Lewis's removal, the Board concluded that there was enough of a similarity between the nature of the misconduct and the other factors to lead to an inference that the agency treated similarly-situated employees differently. Thus, the burden then shifted to the agency "to prove a legitimate explanation for the different treatment" meted to Lewis and the other employee. The deciding official testified that Lewis had a prior 14-day suspension for unrelated misconduct, whereas the comparator employee had no prior discipline. The Board found that although Lewis's prior discipline could justify a harsher penalty than the penalty (written counseling memo) given to the other employee, it does not justify a penalty as harsh as removal for identical conduct which occurred only seven months later. Thus, the Board found that the agency failed to prove a legitimate reason for the difference in treatment by a preponderance of the evidence. The Board held that the maximum reasonable penalty was a 30-day suspension.

* 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 https://www.passmanandkaplan.com/.

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