MSPB Mitigates Penalty

In Raco v. Social Security Administration, 2011 MSPB 87 (9/29/11), the appellant’s removal had been proposed on charges of conduct unbecoming a federal employee. The charge involved 22 alleged discrepancies between the time Raco recorded on her credit hour forms and the time that she actually departed work. Of the 22, 19 involved less than 5 minutes and the remaining 3 were 7.5 minutes, 10.5 minutes, and 34 minutes.

Raco filed an appeal with the MSPB, and the administrative judge mitigated the penalty to a 30-day suspension. The AJ found that the agency did not establish a nexus between the appellant’s alleged misconduct and the efficiency of the service because it adduced no evidence that the appellant’s conduct adversely affected her performance or the agency’s mission. The AJ also found that the agency did not properly weigh the Douglas factors for discipline, failed to appropriately consider mitigating factors, and selected a penalty that exceeded the bounds of reasonableness.

On appeal, the Board found that the 22 time discrepancies in the record supported the charge, but not falsification. It held that the penalty was not proportionate to the seriousness of the misconduct. In light of evidence regarding the discipline imposed on others, the Board found that a 14-day suspension was the maximum reasonable penalty for the charge. The Board found that the agency had demonstrated a nexus between appellant’s conduct and the efficiency of the service, but stated that the de minimis nature of 19 of the discrepancies did not support an argument in favor of removal.

The Board stated that the agency failed to appropriately consider the nature of the discrepancies in its Douglas factors analysis. The Board agreed with the administrative judge that the appellant’s 20 years of successful service was a mitigating factor and found that Raco had been remorseful. The Board ordered the agency to cancel the appellant’s removal and mitigated the penalty to a 14-day suspension without pay considering the lesser penalties meted out to comparators and Raco’s prior letter of reprimand.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com/