Employees under investigation can be comparators

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The U.S. Court of Appeals for the Federal Circuit recently overturned an arbitrator’s decision sustaining the removal of a Social Security Administration employee for violating time and attendance policies. The court found that the arbitrator erred by imposing a “categorical rule of exclusion” against using similarly situated employees under investigation as comparators when arguing that a penalty is not reasonable. Although this case regards an arbitrator’s decision, the rule of law applies to nonbargaining unit disciplinary and adverse actions.

Through her union the employee sought arbitration of the removal action. Upon review of records and time reports of her work component during the relevant time period, the employee was able to show that her eight colleagues had committed the same or similar violations – that five had “more overall error minutes” – but had not received any proposed discipline.

At the end of the arbitration, the parties stipulated that the other employees were now under investigation, but had not been charged with any violations of time and attendance policy. The arbitrator sustained the removal, finding that the eight comparators were not similarly situated because potential disciplinary action regarding the other employees was still pending an investigation.

The court found that the arbitrator erred when concluding that the eight employees could not be comparator employees, because they were under investigation at the time of the arbitration not the time of the employee’s removal.

The court also found that the agency “knew or should have known” at the time of the employee’s removal of “potential problems” with time and attendance among the employees, but delayed its investigation until the allegations of “disparate treatment.”

The court also noted that the investigation leading to the employee’s removal took less than two months after her supervisor received an anonymous tip, but the investigation of the other employees took much longer, and was still ongoing when the arbitrator issued his opinion.

The court said that it “could be read to suggest that [the agency]placed — and kept — the comparators under investigation for the sole purpose of evading [the employee’s]disparate treatment allegation,” and it was “troubling” when the agency admitted it had concluded the investigation but not disciplining other employees. The court stated that “[t]his type of factual evidence is why a categorical rule of exclusion based on an employee’s investigatory status is improper.”

This ruling is a loud, clear warning to agencies not to play games with the disciplinary process in order to treat employees differently. Employees now have an additional line of inquiry as they challenge adverse actions: How is the agency treating comparative employees who are still under investigation?

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About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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