By Deborah J. Hopkins, September 11, 2023
The Merit Systems Protection Board holds a number of functions; chief among them is reviewing agency penalty selections in cases of appealable discipline. The Board’s role is not to displace management’s responsibility in a penalty determination with its own, but to determine whether management exercised its judgment and issued a penalty within the tolerable limits of reasonableness. Alaniz v. U.S. Postal Service, 100 M.S.P.R. 105, ¶ 14 (2005). The same is true of the role of MSPB administrative judges (AJs).
In reviewing recent nonprecedential cases, I noticed several where the Board reversed an AJ’s mitigation and re-imposed the agency’s initial removal penalty. What follows are summaries of two such cases.
The FBI Special Agent Who Fired His Service Weapon
on a Would-Be Car Thief
From a window on the second floor of his home, an FBI special agent saw a man attempting to break into his wife’s car in front of his home. The agent yelled at the would-be thief to get him to stop, but the man persisted. The agent then brandished his service weapon, identified himself as a law enforcement officer, and fired one round, injuring the individual.
At the time he fired his weapon, the appellant was approximately 10 to 25 feet higher than the individual, and 30 feet horizontal distance from the individual.
The agency removed the appellant. On appeal, the AJ mitigated the removal to a 60-day suspension, finding the agency improperly considered certain Douglas factors to be aggravating. The Board disagreed with the AJ and reinstated the agency’s removal penalty, relying on three aggravating factors:
- The appellant’s refusal to accept responsibility,
- The appellant’s prior disciplinary history, and
- The appellant’s “refusal to cooperate with the investigations.”
In addition, the Board agreed with the agency that the misconduct was “directly related to the agency’s mission and the appellant’s ability to exercise reasonable use of force in the performance of his duties in the future.” Kalicharan v. DOJ, NY-0752-16-0167-I-4 (Jul. 20, 2023).
The Disrespectful VA Practical Nurse
The agency removed the appellant, a practical nurse for the VA, based on three charges. On appeal the administrative judge found the agency proved only one charge, inappropriate language, with two specifications:
- While the appellant was in the breakroom with a male coworker, a female coworker called that individual on the telephone and the appellant “yelled out something along the lines of kill that b-tch.”
- During a meeting with management regarding the appellant’s alleged interpersonal conflicts with the female coworker, he admitted to calling the coworker a “b-tch” on one unspecified occasion after she had allegedly lied about him acting inappropriately towards her.
The AJ mitigated the penalty of removal to a 30-day suspension largely because she sustained what she considered to be only the “least serious” of the initial three charges. In explaining the mitigation, the AJ “focused on the context in which the appellant used the inappropriate language and the appellant’s past discipline.” The deciding official considered these to be aggravating factors, but the AJ disagreed.
The Board overturned the AJ’s mitigation and reinstated the removal, after considering as aggravating factors “the appellant’s work in a healthcare setting with veterans, the high standard of conduct and behavior towards patients and other VA employees expected of an individual in the appellant’s position, and the notoriety of the offense in negatively affecting the trust of veterans and the public in the level of patient care at the VA.”
Also, this was the appellant’s third disciplinary offense in less than three years. Therefore, using the principles of progressive discipline, the Board found removal did not exceed the bounds of reasonableness. Beasley v. VA, CH-0752-17-0273-I-1 (Jul. 19, 2023).