Questions, we get questions. And we got several follow-up questions from a certified practitioner who recently completed our famous FELTG MSPB Law Week seminar. Always good to hear that class participants are picking up on things. Below are my responses, in bold.
- Mr. Wiley stated that he now recommends that proposed discipline is sworn by the PO. Is that true for disciple that is not appealable to the MSPB? Yes. Why do you recommend that proposals be sworn to?
By adding the penalty of perjury statement to a proposal letter, the statement is converted from a simple hearsay documenting the agency file to a document having greater evidentiary value. “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”. 28 USC 1746. The Board consistently gives significant weight to uncontroverted penalty of perjury statements, and lesser evidentiary value to evidentiary statements made in an unsworn document. There is always the possibility that a proposing official will not be able to testify at hearing. Adding the penalty of perjury statement converts those factual statements in the proposal – perhaps things that the PO observed personally – into hard evidence that the agency can use to support its case. Without that statement, it cannot use the proposal as evidence of very much. As there is value added and as there is no reason NOT to include the statement, I think it is prudent to do so.
- In the class Mr. Wiley said that the deciding official should complete a DF [Douglas Factor] analysis on a worksheet. However, in the version of his book that’s available on CyberFEDS©, the DF analysis is in the document. Which one is correct?
Both are correct. However, attaching the worksheet itself is a stronger approach, and an approach that I developed after CyberFEDS© published the desk book. I believe I wrote the desk book around 2005. In 2010, the Board began a more scrupulous review of the Douglas Factors. Therefore, my practice evolved.
- Mr. Wiley said that if one of our supervisors is confronted with a record that another supervisor gave a lesser penalty, then he could say: “If I was that supervisor, I would have handled it differently.” HR has said that that recommendation is not supported by the case law, and even if a manager would have handled it differently, we are bound by the previous decision, absent distinguishable facts. Do you agree? Is there any case law or other references that support the recommendation?
Davis v. USPS, 120 MSPR 457 (2013): “The deciding official further testified that he was unfamiliar with the [comparator employee] or the circumstances of his discipline, but that he would have removed the [comparator employee] if he had been the deciding official in that case.”
- Mr. Wiley said that MSPB is pulling back from the idea that you have to disciple consistently throughout the agency. HR disagrees, and I can’t find any authority in support of the statement.
I reach that conclusion from reviewing how the Board assessed the factors in a recent case like Chavez v. SBA, 2014 MSPB 37, and the facts in the collection of the four 2010/2011 cases that started us down this dark road of comparator employees: Lewis/Woebcke/Villada/Raco. In Chavez, the Board addresses three points that they ignored in the Terrible Trilogy: 1) penalties effected post-removal are due limited weight (the greater the length of time between the two, the less weight the later penalty warrants), 2) different discipline officials in different chains of command can justify different penalties, and 3) the agency need not compare appellant to employees who engaged in similar misconduct, unless that misconduct was actually charged. The discipline officials in Lewis/Villada/Raco were different from the comparators. However, the Board did not consider that when mitigating the penalties in those cases. Yet in more recent cases such as Chavez , the fact that the employees were in different chains of command was a major factor in the Board not mitigating that penalty.
In other more recent cases, the Board has spoken to non-mitigating factors it did not consider in 2010/2011. For example, the Board now considers a lack of knowledge on the part of the deciding officials relative to other discipline to be a non-mitigation factor. Ly v. Treasury, 2012 MSPB 100 (“Any difference in treatment between the appellant and the comparator was not knowing and intentional on the part of the deciding official.”) Knowledge on the part of the deciding officials (or lack of knowledge) was not a consideration in the earlier Terrible Trilogy comparator-mitigation decisions.
Finally, the Terrible Trilogy decisions were issued by Board members Grundmann/ Wagner/Rose soon after Grundmann and Wagner were appointed and began issuing decisions in 2010. Member Robbins was appointed in 2012 subsequent to the Terrible Trilogy decisions to replace Member Rose and immediately dissented from the comparator theory of the Terrible Trilogy. Boucher v. USPS, 118 MSPR 640 (2012). Ms Wagner is now gone and Ms Grundmann’s appointment has expired although she is holding over until after the Presidential election, by all appearances. Putting all of this together leads me to the conclusion that the Board is moving away from its poorly thought out approach in the Terrible Trilogy.
Hope this helps. Best of luck- Wiley@FELTG.com