Federal Circuit Overturns Removal Penalty Because of Faulty Application of Law
A federal employee appealed an arbitrator’s final decision upholding her removal to the U.S. District Court of Appeals for the Federal Circuit.
The appellant was hired as a correctional officer at the Bureau of Prisons in March 2018. Two years earlier, in January 2016, the appellant met and began a relationship with a man who had been previously incarcerated from June 2005 until July 2013. Notably, from June 2005 to October 2006, he had been incarcerated at the same correctional complex the appellant later became employed at. Although the appellant knew that her partner had been previously incarcerated, she was unaware that he was in federal custody or that he was previously an inmate at the correctional facility at which she was employed. In May 2019, the agency learned of the appellant’s relationship, placed her on administrative reassignment, and conducted an investigation into the relationship. The agency subsequently removed the appellant for improper contact with a former inmate and failure to timely report.
The appellant challenged her removal with an arbitrator through the negotiated grievance procedure. The arbitrator sustained the agency’s charge of improper contact with a former inmate, but he did not sustain the charge of failure to report, finding that the appellant did not learn of her partner’s previous federal incarceration until June 2019, after which she immediately reported it. Despite upholding only one of the charges, the arbitrator upheld the agency’s penalty of removal. The appellant appealed the decision to the Federal Circuit.
The court explained that an aggrieved employee may challenge disciplinary action taken against them by appealing either to the Merit Systems Protection Board (MSPB) or by taking the claim to an arbitrator. The Federal Circuit may then review the decision of the arbitrator, but it must affirm the arbitrator’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” Based on these standards, the court agreed with the appellant that the arbitrator failed to properly apply the Douglas factors.
Like the MSPB, if an arbitrator sustains fewer than all of the agency’s charges, the arbitrator may mitigate the penalty, unless the agency has stated that it desires a lesser penalty be imposed for the lesser sustained misconduct. The court noted that, because the agency did not indicate it desired a lesser penalty for the lesser sustained conduct in this case, the arbitrator was responsible for independently applying the Douglas factors to determine the reasonableness of the penalty.
Here, though, the arbitrator did not independently apply the Douglas factors. In upholding the penalty, he relied on the reasoning of the deciding official, stating that “controlling law requires me to sustain the Agency’s chosen penalty if the agency considered all of the relevant Douglas factors.” Similarly, the arbitrator deferred to the deciding official’s choice of penalty based on the deciding official’s findings of fact, even though the arbitrator himself found against several of those findings of fact. Based on these passages, the court stated that the arbitrator clearly misapplied the relevant law by not independently applying the relevant Douglas factors,.
For those reasons, the Federal Circuit vacated the penalty of removal and remanded for the arbitrator to independently analyze the Douglas factors and determine the maximum reasonable penalty.
Find the full case here: Williams v. Federal Bureau of Prisons
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