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Home 9 Federal Legal Corner 9 MSPB Mitigates Penalty of Removal

MSPB Mitigates Penalty of Removal

The MSPB agreed to mitigate the penalty of removal to a 14-day suspension in its first major decision on mitigation since the appointment of the two new Board members. Woebcke v. Department of Homeland Security, 2010 MSPB 85 (5/6/10).

The agency had removed the appellant from his position of Federal Air Marshal (FAM) with the Transportation Security Administration (TSA) for conduct unbecoming a FAM and a missed mission related to an alleged incident of misconduct. The administrative judge, although finding that the agency had proved its charges, mitigated the penalty of removal to a 14-day suspension because the deciding official had improperly reviewed the Douglas factors in assessing the penalty. She found that the deciding official did not give sufficient weight to the appellant’s documented depression over a number of serious life events and the 14-day suspensions to other FAMs in similar situations.

The Board upheld the AJ’s opinion that the deciding official had minimized the medical evidence that the alleged misconduct would not likely recur. The “Board has held that evidence that an employee’s medical condition or mental impairment played a part in the charged misconduct is ordinarily entitled to considerable weight as a mitigating factor.” However, “a medical condition is not a significant mitigating factor in the absence of evidence that the impairment can be remedied or controlled, i.e., when the potential for rehabilitation is poor”. It is not necessary that the medical condition rise to the level of a disability, that the appellant’s actions were beyond his control or that the medical condition contributed to the misconduct at issue.

In this case, the medical reports and the unrefuted testimony of the appellant’s psychologist indicated that “at the time of the misconduct he was suffering from depression” and “that the appellant’s depression was a contributing factor to the misconduct in question.” The Board upheld the AJ’s finding that the psychologist’s testimony was “extremely credible” and found that it “has probative value because she provided a reasoned explanation for her medical opinions.”

The Board also agreed with the AJ’s determination of disparate penalties although the comparators were supervised by different individuals, citing Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009). “In that decision, the court held that, although the fact that two employees are supervised by different individuals may sometimes justify different penalties, an agency must explain why differing chains of command would justify different penalties. Williams, 586 F.3d at 1368.” Therefore, the Board held that the AJ “here properly considered disparate penalties in comparison to specified employees and correctly substituted a 14-day suspension for the removal penalty.”