MSPB Overrules Itself to Clarify 'Douglas' Disparate Penalty Analysis
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
The Merit Systems Protection Board (MSPB) recently overruled its own early 2010s precedents on the Douglas factor disparate penalty analysis and held in Singh v. USPS, “the relevant inquiry is whether an agency knowingly and unjustifiably treated employees differently.”
Appellant, an employee at the United States Postal Service, was removed from his position as a result of an investigation by the Office of Inspector General. The agency subsequently rescinded the removal decision and replaced it with a decision to demote the appellant. The appellant then appealed the demotion, and a MSPB administrative judge found the demotion penalty was reasonable. Appellant timely filed a petition for review of the administrative judge’s decision to the MSPB’s presidentially appointed, Senate confirmed Board.
On appeal to the Board, the appellant argued the administrative judge improperly denied him discovery regarding the agency’s treatment of agency-wide employees who engaged in similar misconduct. He speculated the discovery would have revealed that the agency treated similarly situated employees more leniently than him. He additionally argued demotion was an unreasonable penalty, and he raised due process and procedural error defenses.
Addressing the appellant’s arguments on discovery of comparable employee penalties, the Board held that the administrative judge did not abuse her discretion in denying appellant’s request. The Board acknowledged that under the sixth Douglas factor, agencies should consider the “consistency of the penalty with those imposed upon other employees for same or similar offenses” when disciplining employees. The Board also acknowledged that in 2009, the Federal Circuit held the Douglas disparate penalty analysis could consider “other employees” from other work groups who reported to different supervisors. But, the Board held its prior opinions extended the Federal Circuit’s instructions too far.
In responding to the appellant’s argument in Singh, the Board first overruled its earlier opinions—Lewis v. DVA, Villada v. USPS, Woebcke v. DHS, and Figueroa v. DHS—which held that a “broad similarity” in misconduct between an appellant and a comparator was enough to require an agency to explain the difference in treatment. Next, the Board overruled its own earlier opinions—Boucher v. USPS and Portner v. DOJ—that applied the Douglas disparate penalty analysis to offenses of different seriousness. The new Singh decision stated that the “Board should not attempt to weigh the relative seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were treated differently.”
The Board next clarified that, although, a comparator does not need to work in the same unit or under the same supervisor as the appellant, “the relevant inquiry is whether an agency knowingly and unjustifiably treated employees differently.” Lastly, the Board stated that comparing the consistency of the appellant’s penalty with other, similar employees’ penalties is only one factor amongst twelve that should be used to determine the reasonableness of the penalty. Applying these principles to the appellant’s argument regarding discovery of potential comparators, the Board held that the administrative judge was justified in denying appellant’s request for “information regarding the treatment of employees agency-wide who had engaged in similar misconduct” as overbroad.
The Board rejected the appellant’s other arguments and upheld the administrative judge’s determination that the penalty of demotion was reasonable. For these reasons, the Board denied the appellant's petition for review and affirmed the initial decision.
Find the full case opinion here, Singh v. United States Postal Service.
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