The following question came into the FELTG mailroom.
Our agency sometimes uses Last Chance Agreements, but a few members of leadership are concerned that offering LCAs to only certain people could open the agency up to claims of disparate treatment discrimination. What are your thoughts?
The good news is that the MSPB has said that an agency’s decision to enter into a settlement agreement with an employee generally cannot form the basis for another employee’s disparate treatment claim. See Ragolia v. USPS, 52 M.S.P.R. 295 (1992); Lewin v. Department of Justice, 74 M.S.P.R. 294 (1997). The Board explained that “to require such an explanation from the agency in order to discount a disparate treatment claim would have a chilling effect on settlement agreements, which are, after all, favored by the courts and the Board.” Ragolia, 52 M.S.P.R at 304.
A recent NP Board decision affirmed this principle. In this case, the appellant was removed after he tested positive during a scheduled drug test. He admitted he had taken THC tablets two days prior to the test, to cope with alcohol withdrawal. He challenged his removal and claimed a due process violation because he was not offered an LCA. The MSPB, citing Lewin, found there was no valid claim of disparate treatment because settlements with other employees need not be explained. Oneal v. USAF, AT-0752-15-0666-I-1 (Feb. 22, 2023)(NP).
For more on this topic, join FELTG for the all-new virtual class Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives on May 17.
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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.