In a nonprecedential MSPB Initial Decision, an appellant successfully met the tougher comparator employee standard in Singh v. U.S. Postal Service resulting in mitigating a removal to a 21-day suspension. Cordova v. Dep’t of Justice, 2022 MSPB LEXIS 4843 (December 22, 2022). In Singh, the Board held that under Douglas Factor # 6, there must be a “close connection between the misconduct or some other factor for an employee from another work unit or supervisory chain to be a proper comparator.”
BACKSTORY: The appellant—a Bureau of Prisons Supervisory Corrections Officer—was removed from federal service on a charge of “discreditable behavior.” In 2015, appellant’s son was murdered, and he subsequently established an annual memorial motorcycle charity run. Appellant posted videos from one of the charity runs on social media picturing him with members of a criminal activity gang. Upon learning management was concerned the publicly posted videos could impact appellant’s job duties, appellant immediately removed them. Despite this proactive rehabilitative step, the agency removed him from federal service. At the same time, another Supervisory Corrections Officer was also seen in pictures with the criminal gang members. While he was also proposed removal, he had transferred to a different prison and had a different deciding official who mitigated the penalty to a 21-day suspension.
The shared and distinguishing factors between the two were:
- Both engaged in substantially similar conduct;
- At the time of the conduct, both held the same position, worked in the same work unit and were under the same chain of supervision;
- Both had 18 years of service without any prior discipline;
- Both expressed remorse and accepted responsibility for their actions;
- At the time of discipline, the two had different proposing and deciding officials
WHY IT MATTERS: The administrative judge found the above-cited similarities strong enough to shift the burden to the agency to explain the difference in treatment. However, there was no testimony by the deciding official justifying the extreme difference in treatment. Interestingly, there was no evidence or finding by the AJ that the agency or the deciding official “knowingly” treated the two federal employees differently. While the stringent standard in Singh is very difficult to meet, this case shows that under the right set of facts it can be done.
OTHER LEARNING POINTS: As the Board noted in Singh, the consistency of the penalty with other similarly situated federal employees is just one of many relevant factors in determining an appropriate penalty. It cannot be the sole outcome determinative factor. As such, there were other errors committed by the deciding official in his penalty analysis leading to the mitigation of penalty. The AJ discounted the deciding official’s testimony the penalty was consistent with the agency’s table of penalties (TOP) because the agency neglected to enter the TOP into evidence. Additionally, the AJ discredited the deciding official’s conclusion the appellant lacked rehabilitative potential because appellant did not show remorse or accept responsibility for his actions. The AJ pointed to the appellant’s expression of remorse in the written reply and noted the appellant’s immediately taking down the videos. Board case law provides that an appellant’s prompt recognition and acknowledgment of misconduct reflects strong rehabilitative potential and weighs in favor of imposing a penalty less severe than removal. Boo v. Dep’t of Homeland Security, 122 MSPR 100, ¶ 22 (2014)
