Case Closed

The first piece of bad news for employees this case illustrates is that the deciding official (often the direct supervisor) serves as the apex of the comparison pyramid. Therefore, punishments other managers meted out at the same facility might have been no more relevant than what happened to employees in offices 3,000 miles away. Making a valid comparison of disciplinary decisions seems hopeless, but some employees have other options. For someone in a bargaining unit, arbitration may be more fruitful. Arbitrators are required to follow MSPB case law, but their affinity for baby-splitting sometimes results in mitigation.
Basing an MSPB appeal on a similar case that resulted in a lighter penalty isn't as easy as it sounds.

Federal employees who are hit with a notice of proposed discipline often are outraged that others in their organization seem to have gotten off more lightly for worse behavior. In fact, many charged with sexual misconduct point out that their misdeeds pale beside those of President Clinton's.

Unfortunately, the Merit Systems Protection Board has been chipping away at the concept that like offenses should result in like punishments since the mid 1980s. On Feb. 20, the board put perhaps the last nail in coffin of equitable treatment by rejecting a picture-perfect comparison.

The case arose when a U.S. Postal Service employee appealed because another postal worker received a lighter punishment for what seemed to be identical misconduct. The board rejected the appeal, saying the employee's case must be "nearly identical" to the other employee's in all aspects to receive the same treatment. Though the employees had the same job description and supervisor, the appellant had different duties, the board said. The appellant supervised carriers, while the other employee supervised clerks.

The Same Difference

In a 1992 case, MSPB clearly stated that the immediate work unit may be the entire comparison universe. In the case of a Secret Service agent claiming disparate treatment, the board ruled that the appellant did not work in the same unit as the employee cited for comparison and they had different supervisors, even though they reported to the same regional manager. To consider a common thread at the level of management that oversees multiple op-erations "would effectively negate the well-established rule that employees in different work units and who work for different supervisors are not similarly situated," the board ruled.

Equally awful for employees, even slight factual differences can knock prior cases out of the box for comparison. For example, a special agent at the Drug Enforcement Administration was fired for coercing a female informant to have sex in return for avoiding jail. The board ruled that two other cases in the same DEA office-where agents were only suspended for having sex with female informants-were irrelevant due to the lack of coercion in those instances.

The board also has said that an unwritten or de facto policy of leniency and use of progressive discipline is of no significance in its decision. In one case, a fired materials handler at the Defense Department was unable to point to the fate of six co-workers who had received three- or 10-day suspensions for the same type of misconduct-fighting, bad language and racial slurs. MSPB threw out the comparison because, among other disqualifiers, the six had not directed their anger toward supervisors and security personnel, and some had more years of service.

Perhaps the only time an employee can be assured of using a co-worker's punishment for comparison is when both are involved in the same infraction.

Prior discipline also counts. An Air Force child-care center employee was fired for leaving a napping child behind when a fire alarm sounded. Two other employees who shared responsibility for that child's welfare were merely reprimanded. But that did not save the employee's job, largely because she previously had been counseled for this type of problem.

Like machine-gun fire, MSPB is cutting off most of the remaining avenues of appeal. To no avail, a Navy employee who was fired for sleeping on the job showed that a co-worker had received only multiple suspensions for leaving his duty station, tardiness and insubordination, among other infractions. The board said that a disparate penalty in the work unit would not require mitigation unless the agency "intentionally treated similarly situated employees differently" or "imposed a more severe penalty without advance warning." Also, consistency of the penalty with others meted out is only one of the Douglas Factors. Named after a 1981 case, the Douglas Factors outline 12 circumstances the board must consider in determining employee penalties.

"Where an imposed penalty is appropriate for the sustained charges, an allegation of disparate penalties is not a basis for reversal or mitigation," the board has said. Translation: If the punishment fits the crime, then the case is closed. The agency is not required to hunt down all offenders, military personnel cannot be compared with civilians and legal settlements almost never can be compared with disciplinary actions (though arbitrations can).

Alternate Routes

If co-workers are of different "protected classes," such as gender or race, then they may find the Equal Employment Opportunity Commission to be more sympathetic. According to the commission's bizarre philosophy, if an agency can't offer a logical and believable rationale for its action, then it must be discrimination.

Unless employees can appeal to an arbitrator or the EEOC, they are unlikely to prevail on the issue of disparate treatment, especially with the current MSPB, which is, to put it mildly, less than sympathetic to erring feds.

NEXT STORY: A Bridge to Service

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