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  • Q. I was removed from my position for misconduct. Other employees who have committed the same misconduct received only temporary suspensions. Do I have a claim against the agency?
    Updated On: Aug 02, 2016

    A. It might be possible to argue that your penalty is beyond the bounds of reasonableness based on an analysis of the Douglas factors.  The Douglas factors are a set of criteria an agency must consider in determining the appropriate penalty for employee misconduct.  The Douglas factors were born out of the landmark ruling of the Merit Systems Protection Board (MSPB) in Douglas v. Veterans Administration (1981).  The sixth Douglas factor calls for a disparate penalty analysis to determine "the consistency of the proposed penalty with those imposed upon other similarly situated employees for the same or similar offenses."

    To establish disparate penalties, an employee must "show that the charges and circumstances surrounding the charged behavior are substantially similar."
    For example, in Ellis v. United States Postal Service (2014), the MSPB concluded that the penalty of a 14-day suspension charged to the appellant for adding incorrect information to an employee database was inconsistent with the letter of warning given to a similarly situated employee who engaged in comparable misconduct.  In deciding to reverse the penalty, the MSPB further noted other similarities, namely that the two offenses occurred only a few months apart and that the deciding official was the same in both cases.  Therefore the MSPB concluded that the inconsistency of the penalties charged to the comparable employees for substantially similar misconduct amounted to a disparate penalty in violation of the sixth Douglas factor.

    By contrast, take the case of Batara v. Department of the Navy (2016).  In this case, the MSPB concluded that the appellant's drug-related misconduct which resulted in his removal was not substantially similar to the drug-related misconduct of a comparable employee who received only a 30-day suspension.  In determining that the misconduct was not substantially similar, the MSPB noted that while the appellant was penalized based on his repeated use of marijuana at work, the similarly situated employee engaged in only a single act of misconduct, namely refusing to take a drug test.

    If an appellant overcomes the initial hurdle of establishing a disparate penalty, the agency must then prove by a preponderance of the evidence that there is a legitimate reason for the differing treatment.  For example, in Portner v. Department of Justice (2013), the MSPB ruled that the agency failed to offer a legitimate explanation as to why the appellant was removed from his position with the Drug Enforcement Administration (DEA) based on his unauthorized use of an official government vehicle and making of a false statement to an official, while three similarly situated employees who engaged in arguably more serious misconduct, which included the unauthorized use of an official government vehicle, received only temporary suspensions.

    In concluding that the agency failed to meet its burden, the MSPB noted that while the appellant drove an official government vehicle to a restaurant against protocol, the similarly situated employees drove official government vehicles against protocol, and did so while they were under the influence of alcohol.  Therefore, the MSPB concluded that the agency failed to offer a "sufficient explanation for the significantly harsher penalty given to the appellant." 
    If you feel as though you have been penalized differently than a similarly situated employee who committed a similar offense, you should contact an experienced federal employment attorney to discuss the possibility of a disparate penalty claim.


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