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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *How Employees Become Similarly Situated for Purposes of an  Adverse Action Penalty*
    The Board has long held that in order to ensure  that penalties are reasonable, same or similar offenses should be treated in a  similar manner.1  To establish that penalties are  disparate, an appellant must show that the charges and the circumstances  surrounding the charged behavior are substantially similar to those of a  comparator employee.2  Proof that the proffered comparator was in  the same work unit, with the same supervisor, and was subjected to the same  standards governing discipline can help an appellant to make an initial showing  that the charges and the circumstances surrounding the charged behavior are  substantially similar.3  However, these are factors to be considered,  not hard-and-fast mathematical calculations.4  
      If an appellant makes an initial  showing that there is enough similarity to lead a reasonable person to conclude  that the agency treated similarly situated employees differently, then the  agency must prove  that it had a legitimate reason for the difference in treatment between  employees.5  Board case law demonstrates how important it  is for the agency to be prepared to articulate before MSPB the reasons why the  case at issue is different from the comparator cases.6 
      One factor that can weigh heavily is  the type of position that is held by the employees being compared.  For example, it is well established that law  enforcement officers can be held to a higher standard of conduct than other  federal employees.7  Similarly, agencies are entitled to hold  supervisors to a higher standard than non-supervisors because they occupy positions  of trust and responsibility.8  However, even the ability to hold certain  positions to higher standards is not always dispositive.  Every case will be considered on its own  merits.
      For example, in *Chavez v. Small Business* *Administration*,  the appellant claimed that his penalty was too harsh because an allegedly  comparable employee was not as severely disciplined.  However, the Board found that differing  penalties were justified because: (1) a  two year lapse in time between the impositions of penalties weakened the  comparison; (2) the employees were disciplined by different agency officials  and worked in separate chains of command within the agency; (3) the employees  had different responsibilities; and (4) the appellant was found to have  committed additional offenses not committed by the comparator employee.9
      In *Davis  v. U.S. Postal Service*, the Board found differing penalties were  permissible, in part because an agency is permitted to provide evidence that  the penalty previously implemented for a similar offense was too lenient.  In *Davis*,  a non-supervisory employee made extremely hostile statements to a  supervisor.  The employee was removed and  filed an appeal in which he claimed disparate penalties because a manager who  also made hostile remarks in the workplace was not removed.  The agency then provided MSPB with evidence  that the appellant’s unacceptable conduct, unlike that of the manager, placed  employees in fear for their safety.   Moreover, the agency specified that the appellant’s unacceptable conduct  violated the agency’s zero tolerance policy, unlike that of the manager.  The agency also showed that the manager had  approximately 29 years of service with the agency, in contrast to the appellant’s  6 years of service.  Additionally, the  deciding official credibly testified that, had he been the official for the  comparator case, he would have removed that employee as well.  By presenting this evidence to the Board and  explaining its reasons, the agency proved that it had a legitimate reason for  the difference in treatment between these employees and the Board sustained the  removal.10
      In contrast, in *Williams v. Social Security Administration*, it appeared that the  agency was more lenient with an employee who perpetrated a tax fraud than it  was with an employee who, in the words of the court, “merely had participated  in it.”  The employee who committed the  lesser offense had “worked for six years since the misconduct and done an  excellent job. . . [with] no problems” prior to the agency  implementing the penalty.  The court  explained that, “[w]hile the fact that two employees are supervised under  different chains of command may sometimes justify different penalties, in this  case” that alone would not be adequate justification for disparate  treatment.  The court noted that while  the Government’s counsel later tried to justify the agency’s actions, in the  “record before the Board, which is the only record we have” the agency did not  explain the justification for treating the lesser offense more seriously.11 
      The Board has set forth a list of 12  factors to be considered when determining a penalty,12 and the more these factors differ, the more the situations may not be as  similar as they appear at first glance.   Decades of case law show that just because two cases have some  commonalties does not mean that the agency will be unable to explain why they  are different, justifying different penalties.   But, if an action is appealed to MSPB, agencies may be required to make  those explanations and submit a record showing that when penalties differ, it  is because the situations were not similar after all.  
      Agencies may encounter situations in which  officials consistently provided greater leniency in the past than the agency  wishes to permit in the future for similar offenses.  In such cases, the primary distinction  between new offenses and the comparator cases would be a change in agency  policy rather than differences in the employees or the offenses.  The Board has explained that an agency can  implement more stringent penalties in the future than it has in the past,  provided that it notifies its employees of the change in policy.13  Many agencies also use a table of penalties  to explain general ranges of discipline that the agency considers appropriate  for various offenses to provide some consistency within the agency.  As with other agency policies, tables of  penalties can be modified.  
      Agency officials are not rendered powerless by  what other officials have done in the past when the new officials properly  communicate with their workforces, explaining any policy changes.  Policy changes may not even be required, if  the agency finds its actions warranted by the unique conditions of individual  cases and officials are prepared to explain why new situations have different  circumstances.  Whether it is setting  forth new policy to the workforce or explaining the reasons why individual  circumstances are not similar, agency communications are crucial to addressing  differences in penalties.
   1*Douglas v. Veterans Administration*, 5 M.S.P.R. 280, 305 (1981).
      2*Archuleta v.  Department of the Air Force,* 16 M.S.P.R. 404, 407 (1983).  A discrimination claim of disparate treatment  is an affirmative defense and is a separate matter from an allegation of  disparate penalties.  *Munoz v. Department of Homeland Security*,  121 M.S.P.R. 483, ¶ 14 (2014).  When an  appellant asserts an affirmative defense of discrimination or retaliation under  42 U.S.C. § 2000e–16, the adjudicator first will examine whether the appellant  has shown by preponderant evidence that the prohibited consideration was a  motivating factor in the contested personnel action.  Such a showing is sufficient to establish  that the agency violated 42 U.S.C. § 2000e–16, thereby committing a prohibited  personnel practice under 5 U.S.C. § 2302(b)(1).  If the appellant meets his burden, the  adjudicator then will inquire whether the agency has shown by preponderant  evidence that the action was not based on the prohibited personnel practice, *i.e.*, that it still would have taken the  contested action in the absence of the discriminatory or retaliatory  motive.  If the adjudicator finds that  the agency has made that showing, its violation of 42 U.S.C. § 2000e–16 will  not require reversal of the action.  *Savage v. Department of the Army*, 122  M.S.P.R. 612, ¶ 51 (2015).
      3*Lewis v.**Department**of Veterans Affairs*, 113 M.S.P.R. 657, ¶  6 (2010).
      4 For example, while the  fact that two employees are supervised by different individuals may sometimes  justify different penalties, an agency may be required to explain why differing  chains of command would justify different penalties.  *Boucher  v. U.S. Postal Service*, 118 M.S.P.R. 640, ¶ 22 (2012).
      5*Ellis v. U.S. Postal Service*, 121 M.S.P.R. 570, ¶ 11 (2014).  If the circumstances cited by the agency  justify a harsher penalty on the appellant than on the comparator(s), but do  not justify the penalty imposed by the agency on the appellant, the Board will  mitigate the penalty to the maximum reasonable penalty.  *Id*.
      6*See, e.g., Portner v. Department of Justice*, 119 M.S.P.R. 365, ¶ 21  (2013) (explaining that the agency did not offer a sufficient explanation for  the significantly harsher penalty given to the appellant versus that given to  the comparator); *Boucher v. U.S. Postal Service*,  118 M.S.P.R. 640, ¶ 24 (2012) (concluding that the agency failed to offer a  persuasive explanation for why penalties should differ between the appellant  and a comparator); *Woebcke v. Department  of Homeland Security*, 114 M.S.P.R. 100, ¶¶ 21-22 (2010) (holding that the  administrative judge acted properly when concluding that the agency failed to  prove by preponderant evidence that there was a legitimate reason for a  difference in how similar offenses were punished); *Lewis v. Department of Veterans Affairs*, 113 M.S.P.R. 657, ¶¶ 16-17  (2010) (discussing the deciding official’s testimony regarding how this case  was different from a comparator case).
      7*Watson v. Department of Justice*, 64 F.3d 1524, 1530  (Fed. Cir. 1995); *Phillips v. Department of the Interior,* 95 M.S.P.R.  21, ¶ 16 (2003), *aff’d,* 131 F. App’x 709 (Fed. Cir. 2005).
      8*Edwards v. U.S.  Postal Service*,  116 M.S.P.R. 173, ¶ 14 (2010).  *See Gebhardt v. Department of the Air Force*,  99 M.S.P.R. 49, ¶ 21 (2005), *aff’d*,  180 F. App’x 951 (Fed. Cir. 2006).
      9*Chavez v. Small  Business Administration*, 121 M.S.P.R. 168, ¶¶ 21-24  (2014).
      10*Davis v. U.S. Postal  Service*,  120 M.S.P.R. 457, ¶¶ 2-4, 9, 8-9, 14-16 (2013).
      11*Williams v. Social  Security Administration*, 586 F.3d 1365, 1368-69 (Fed. Cir. 2009).  The court remanded *Williams* back to the Board to permit further development of the  record regarding the agency’s actions.   However, in general, once the record closes, no additional evidence or  argument will be accepted unless it is new and material and the party  submitting it shows that, despite due diligence, the evidence or argument was  not readily available before the record closed.   5 C.F.R. §§ 1201.114(k), 1201.115(d).  It is therefore extremely important that the  agency initially develop the record properly.   (Decisions of the U.S. Court of Appeals for the Federal Circuit are  controlling authority for the Board, whereas other circuit courts’ decisions  are persuasive, but not controlling, authority.  *Fairall v. Veterans Administration,* 33 M.S.P.R. 33, 39, *aff’d,* 844 F.2d 775 (Fed. Cir. 1987)).
      12*Douglas v. Veterans Administration*, 5 M.S.P.R. 280, 305 (1981).
      13*Parker v. Department of the Navy*, 50 M.S.P.R. 343, 354-55 (1991); *Tucker v. Veterans Administration*, 11  M.S.P.R. 131, 132–33 (1982).  *See* *Social  Security Administration v. Mills*, 73 M.S.P.R. 463, 473 (1996) (holding that  the appellants “were notified in advance” of the agency’s policy), *aff’d*, 124 F.3d 228 (Fed. Cir. 1997)  (Table).


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