By Deborah Hopkins, June 21, 2022
We’ve had a quorum for more than three months and a full front office at the MSPB for about three weeks. And now, thanks to what might be the most significant case issued in over a decade, we have a clear, specific, and reasoned answer about who counts as a comparator employee in an adverse action under Douglas factor 6.
Why is this such a big case? In its first three decades when assessing appropriate comparators, the Board required there to be a close similarity in offenses, and generally that comparators worked in the same unit, and worked for the same supervisors. Anything further out was too far removed to be reasonable for the agency to consider. See Jackson v. Army, 99 MSPR 604, ¶ 7 (2005); Fearon v. Labor, 99 MSPR 428, ¶ 11 (2005); Rasmussen v. USDA, 44 M.S.P.R. 185, 191-92 (1990); Archuleta v. USAF, 16 MSPR 404, 407 (1983).
Those of you in the business in 2010 probably recall when the Board changed the comparator framework. It issued what we at FELTG started referring to as the Terrible Trilogy:
- Woebcke v. DHS, 2010 MSPB 85
- Lewis v. VA, 2010 MSPB 98
- Villada v. USPS, 2010 MSPB 232
In case you weren’t around back then, or you’ve forgotten since it was a long time ago, we called those cases The Terrible Trilogy because they expanded the comparator analysis to include nearly anyone in the agency who engaged in broadly similar misconduct to the appellant.
This created a huge burden for agencies, particularly the large agencies, to determine which employees had been disciplined for misconduct and then to apply a consistent penalty to all employees who engaged in somewhat similar conduct, regardless of their location, their job duties, or their supervisors. It also caused potential problems for agencies when employees engaged in specific acts of misconduct but weren’t disciplined at all, which is a too-common occurrence in the Federal government.
At FELTG, we are all about fairness of penalty. However, we felt that this broad requirement was cumbersome and unnecessary to fulfill the intent of the Douglas factors. And, according to the new MSPB in this precedent-setting 2022 case, under the Terrible Trilogy standard “the universe for potential comparators was seemingly limitless” and broader than Douglas requires. Singh v. USPS, 2022 MSPB 15 (May 31, 2022).
The Board also said of the Trilogy framework: “[I]n some cases the consistency of the penalty has become not only more important than any of the other Douglas factors, it has become the sole outcome determinative factor. We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty.”
Who is a comparator employee today under Douglas factor 6, consistency of penalty?
- Employee in the same work unit,
- With the same supervisor,
- Who engaged in the same or similar misconduct as the appellant.
In most cases, employees from another work unit or supervisory chain will not be proper comparators. There is an exception when, in certain unique circumstances, an employee from another work unit or supervisory chain might be a comparator for penalty purposes – but only if there is an “unusually close connection” in the type of misconduct. And even still, comparator employees cover just one of the 12 Douglas factors.
A few other notable words from the Board in Singh: “In assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently…We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty.” [bold added]
Therefore, the Terrible Trilogy and their related cases are overruled, and the question that has been lingering for over half a decade (What will be the fate of the Trilogy under a new Board?) finally has an answer. We’ll be discussing this case, plus others, in much more detail on July 20 during the virtual class Back on Board: Keeping Up with the New MSPB. Hopkins@FELTG.com.