NAGE Legal Victory Puts Member Back to Work with Two-Years' Back Pay; Case Makes CyberFEDS "HOTLAW"
June 8, 2010—A NAGE Local R5-66 member who was removed almost two years ago from his position as a health technician at the Memphis VA Medical Center has been reinstated with two-years' back pay in an extraordinary legal case won by NAGE Assistant Regional Counsel Sarah Suszczyk.
The case was a huge legal victory for NAGE and the reinstated employee, but will have even more far-reaching effects as it changes the way the federal Merit Systems Protection Board will view future cases dealing with "disparate penalty" analysis. CyberFEDS HOTLAW, which features the hottest federal cases and most significant legal outcomes, reported that, because of this case, the MSPB will begin to take a more flexible approach in determining whether a disciplined employee has received penalties disparate from other similarly situated employees.
The member in the case won by Attorney Suszczyk was removed from his position effective July 11, 2008 for violation of a policy regarding the monitoring of a patient identified as at-risk for suicide. NAGE filed an appeal of his removal with the Merit Systems Protection Board, but the Administrative Judge found the member had violated the policy and upheld the removal.
Despite the initial removal and the failure of the Administrative Judge to reverse the removal, NAGE did not stop fighting for this member.
Based on new evidence found through discovery in a separate case, Attorney Suszczyk filed a Petition for Review with the full Board on the grounds that the Agency had treated the member disparately from other employees who had violated the policy but had not been removed, and in fact, had received a much lesser penalty.
In a rare move, MSPB granted the Petition for Review and remanded the matter back to the Administrative Judge to hear evidence about the two other employees who had violated the rule and for a determination as to whether there would be any effect on the penalty of removal in Local R5-66 member's case.
The Administrative Judge issued a remand decision determining that the two other employees were not comparator employees and again upheld the removal. Not willing to give up, Attorney Suszczyk filed a second petition for review with the MSPB.
In the second PFR, Attorney Suszczyk argued that at least one employee identified was a comparator employee and that the Agency had asserted no reason for treating the Local R5-66 employee disparately by removing him while giving the comparator employee only a letter of counseling. She asked the Board to substitute its own judgment for that of the Administrative Judge.
On May 28, 2010, the Board granted the second petition for review. The Board determined that the other employee was, in fact, a comparator employee to the Local R5-66 member, and that the Agency had no reason to treat the two differently even through they were not employed in the same work unit. The Board vacated the Administrative Judge's second decision, reduced the penalty from removal to a 30-day suspension, returned the member to his position with the Agency and granted the member nearly two years' of back pay.
In issuing this award, the Board developed a new, less stringent standard for comparator employees stating that:
"There must be enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently, but we will not have hard and fast rules regarding the 'outcome determinative' nature of these factors."
Prior to the issuance of this award, outcome-determinative factors in determining whether an employee was considered a comparator included whether or not they were in the same work unit or had the same supervisor. If they were not in the same work unit or didn't have the same supervisor, as was the case here, the employee would not have been considered a comparator.