Morally, Ethically; Spiritually, Physically; Positively, Absolutely; Undeniably and Reliably
By William Wiley
Ding Dong! The Witch is dead. Which old Witch?
The Wicked Witch! Ding Dong, the Wicked Witch is dead!
Wake up, you sleepy head, rub your eyes, get out of bed.
Wake up, the Wicked Witch is dead!
If that little ditty doesn’t get you dancing around with glee, then you might be a heartless non-Munchkin who needs to dance and smile more.
And, boy oh boy, do I have a good reason for you to dance and smile. But first a perspective.
Back in the good old days – up until 2010 – our cares were few and light when it came to disparate penalty defense. Even if there was someone else in the agency who was not fired who had done the same thing as the current miscreant, it was OK to fire today’s misbehaver as long as he was in a different organizational component.
This was known as the “comparator employee” analysis. Effectively, it resulted in few removals being mitigated because there was almost always enough difference between or among comparators to justify differential discipline. The Board occasionally found other reasons to mitigate, but this Douglas Factor usually did not carry much weight.
Then, in 2010, we started getting decisions from President Obama’s two new Board members. Clearly, they came into their offices with a different take on workplace accountability. Rather than follow the well-worn path of requiring consistency only below the Deciding Official, these newly sworn-in Presidential appointees decided that an agency had a responsibility to be consistent throughout the AGENCY, an absolutely ludicrous and indefensible position with no basis whatsoever in civil service law. The three decisions that nailed down this new principle in 2010 came to be known among seasoned employment law practitioners as The Terrible Trilogy. See Woebcke v. DHS, 2010 MSPB 85; Lewis v. DVA, 2010 MSPB 98; Villada v. USPS, 2010 MSPB 232. And thus, the dark days began.
It is rare that a new twist in case law harms both sides of the bar, employees and management alike. On the management side, agencies began trying to develop world-wide data bases to track all the discipline being administered, and correlating it with the charged misconduct. Soon, agency practitioners began to realize that they simply could not do what the Board was asking because:
- The Board was looking for comparator misconduct, not simply comparator discipline. To satisfy The Trilogy, an agency would need to track non-disciplined world-wide misconduct, a physically and mentally impossible task.
- Some agencies tried withdrawing from front line managers the authority to hold employees accountable through discipline. The thought was that centralized discipline decisions would provide The Trilogy’s mandated consistency. Of course, when that was done, line managers who are being held accountable for the success of their organizations began to feel dis-empowered and wondered how they could run their organizations effectively with some panel of HQ lawyers deciding who should be fired and who should not.
On the employee side an obvious adverse situation began to develop. In an effort to ensure consistency in appeals of removal actions, agencies began to fire EVERYBODY so that the bar would be kept high for subsequent comparators. Deciding Officials were coached to provide no mercy. A lower penalty today might mean that a monster could not be fired tomorrow as the Members were applying an extremely broad definition of comparators post-Trilogy. In one particularly noxious decision, the Members compared employees doing different work, at different grades, in different organizations, with different discipline histories, with vaguely similar misconduct, to an employee who was fired based on a charge that the Board re-characterized on appeal. Raco v. SSA, 117 MSPR 1 (2011).
Holy moly, was The Trilogy a terrible mistake. And everyone seemed to realize it, except the two Board members who came up with the idea and were in a position to fix things. Fortunately, President Obama’s newest Board Member Mark Robbins, appointed in 2012, understood the situation and immediately began issuing dissents arguing that this agency-wide comparator philosophy was bad law. Unfortunately, he is but one vote out of three, and The Trilogy marched on.
Every now and then, post-Trilogy we would glimpse a ray of hope. There would be a decision that found that the alleged comparator was not actually a discipline-restricting comparator based on some factor not addressed in the three foundational cases from 2010. Even though that “new” factor was no doubt present in The Trilogy, it was not discussed in those three cases as if it had no relevance. The decision I have viewed as the life raft in this mess is Chavez v. SBA, 2014 MSPB 37. In that decision, without distinguishing The Trilogy in any way, the Members held that a number of common sense factors were relevant to distinguishing a comparator employee, factors not really analyzed in The Trilogy cases.
And if Chavez is the life raft, I think I might now see the rescue boat. Thanks to an alert reader who was kind enough to point out a recent non-precedential decision to me, I have reached the conclusion – tentative, but a conclusion nonetheless – that the two remaining Board members have drifted back to where we were pre-Trilogy. When determining that the alleged comparator was not really a comparator for finding a disparate penalty, the Board relied on the following non-Trilogy factors:
- Different positions
- Different first line supervisors
- Different Proposing Officials
- Different Deciding Officials
- Different charged misconduct
In addition, although in some previous decisions the Board had raised the issue of disparate penalties on its own motion (that’s sua sponte for all you Latin-os out there), in this decision the Board clearly stated that the agency does not have a disparate penalty defense burden until the appellant “triggers” it by proving non-Trilogy factors such as:
- The appellant and comparator are in the same work unit
- They have the same supervisor
- They have the same deciding official
- The penalties occurred relatively close in time (MSPB had previously reached back four years to find a comparator)
In addition, the nature of the acts of misconduct must be so similar that a “reasonable person would conclude that the agency treated similarly situated employees differently.” Brantley v. USPS, DA-0752-14-0590-I-3 (April 15, 2016)(NP). In Brantley, the appellant’s act of misconduct was being an accessory after the fact to armed robbery with a firearm whereas the comparator’s act of misconduct was aggravated battery (throwing bleach in a woman’s face). The Board concluded that the nature of these two acts of misconduct was different because they were committed “under vastly different circumstances.”
I can already hear those nay-sayers now. “But Bill, Brantley is non-precedential. Those decisions don’t really mean very much. Besides, the Members are not specifically saying that they are abandoning The Trilogy. In fact, they specifically reference Lewis, one of foundational Trilogy decisions. Aren’t you over-reading things a bit?” Well, no, I’m not. I might be reading between the lines a bit, but sometimes this business requires that we work off nuances and shades of meaning. In 2010, when developing The Trilogy, the Board didn’t make a big deal out of it. In fact, for the most part it pretended that it was just applying established law under Douglas. I’ve had the honor of working with 12 of the 20 Board members we’ve had in history, and I can tell you that they don’t like to announce case law shifts as major. They like to slide into them, ostensibly based on existing precedence even when they are coming out of left field with a new, perhaps controversial, idea. To my read that is what is happening here.
And for those of you who poo-poo non-precedentials, keep in mind that the reason the Board labels them NP is because the Members are saying that there’s nothing new here, and that the analysis rests on established case law. In other words, this is old stuff. So you may not rely on NPs for controlling authority, but you can bet your next step-increase that the judges read these things and see them as instructive.
I may be wrong on this. But you know what? I don’t care. The way the Presidential campaign is going, coupled with the piecemeal attacks on the civil service being thrown around on Capitol Hill, has pushed me into an employment-law-practitioner funk. I need something to lift me up, and by gosh, this is going to be it. As always, go make your own decisions and do what you think needs to be done. As for me, I’ve got some singing and dancing to do:
It’s gone where the goblins go, below – below – below.
Yo-ho, let’s open up and sing and ring the bells out.
Ding Dong, the merry-oh, sing it high, sing it low.
Let them know The Trilogy is dead!
If you have even a little bit of childlike glee left in you, you will click this link and sing and dance along with the Munchkins, as we do here at FELTG. Hey, nobody’s watching! https://www.youtube.com/watch?v=PHQLQ1Rc_Js