Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
Q. My federal agency has proposed my removal, but I know other people who got away with a 90-day suspension for the same misconduct. Can agencies do that?
A. Generally, similarly situated employees should not receive disparate penalties for similar misconduct. The penalty previously imposed on similarly situated employees is one of the 12 so-called mitigating “Douglas factors” that deciding officials should weigh when deciding on discipline. However, not all employees – even those who hold the same title – are similar. Years of experience and prior misconduct could differentiate them. Further, not all types of misconduct – even when the charges go by the same name – are equal.
Traditionally, the Merit Systems Protection Board (MSPB) had held that employees were not deemed similarly situated if they did not share the same supervisor and work unit. Consequently, the Board considered these factors to be “outcome determinative,” it noted in Joe Lewis Jr. v. Department of Veterans Affairs (2010). However, prompted by a U.S. Court of Appeals for the Federal Circuit decision, the Board in Lewis adopted what it called a more “flexible approach” under which employees could be deemed similarly situated even though they did not share the same work unit or supervisor.
In fact, the Board in Rasheed Dennis v. Department of Housing and Urban Development (2013) identified factors that are “relevant considerations, but none of them is a threshold requirement or outcome determinative in a disparate penalty analysis.” These factors include: 1. “whether a comparative employee worked in the same organizational unit, had the same supervisor and/or deciding official”; 2. “whether the events occurred relatively closely in time;” 3. “whether the difference in treatment was knowing and intentional”; 4. “whether an agency began levying a more severe penalty for a certain offense without giving notice of a change in policy”; and 5. “whether an imposed penalty is appropriate for the sustained charge(s).”
If the employee, with the help of a federal employment law attorney, manages to establish himself or herself as similarly situated to comparators who received more lenient punishments, the agency then must provide a legitimate explanation for the penalty disparities.
Federal employees who are facing discipline for alleged misconduct should immediately contact a federal employment law attorney who can represent them in the agency’s misconduct investigation, reply to proposed discipline, and/or prepare and litigate their MSPB appeal. Depending on the circumstances, an attorney can show the agency failed to properly consider penalties meted out to similarly situated comparators, it treated similarly situated employees more leniently, or its explanation for the different penalties is not legitimate.
Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com.
The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.
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Synetic Theater Camps are a wildly fun, highly accessible choice for young people who love moving, playing games, and making memories. Registration is open now for Summer Camps (sessions June 20-August 25) and there are even a few spots left for Spring Break camp, April 3-7.
Located in National Landing, these performance-based camps are designed for students of all ages – no theater or performance experience required.
Led by professional teaching artists, campers learn acting, movement, and technical theater skills through the lens of Physical Theater. Physical Theater incorporates acting, movement, dance, mime, and acrobatics. If you’ve seen a Cirque du Soleil performance, you’ll find many similarities.
Most first-time campers are new to the performing arts, and teaching artists are well-versed in engaging students at all levels. Parents and campers report that one of the best parts of Synetic is the community, with many families returning year after year because they feel a strong sense of belonging.
EDBS Dental Billing Solutions is pleased to announce that it has achieved compliance with the federally mandated standards of the Health Insurance Portability and Accountability Act (HIPAA) through the use of Compliancy Group’s proprietary HIPAA methodology, The Guard® compliance tracking software, and HIPAA Seal of Compliance®.
The HIPAA Seal of Compliance is issued to organizations that have implemented an effective HIPAA compliance program through the use of The Guard, Compliancy Group’s proprietary compliance tracking solution.
Clients and patients are becoming more aware of the requirements of HIPAA compliance and how the regulation protects their personal information. Forward-thinking providers like EDBS Dental Billing Solutions choose the HIPAA Seal of Compliance to differentiate their services.
“Since the nature of our business being exclusively remote, we take HIPAA compliance very seriously. With the help of Compliancy Group, we are able to take steps to fortify our systems to protect PHI information and familiarize each employee about HIPAA and how we can further safeguard PHI data.” said EDBS Dental Billing Solutions founder Goldie De Leon.
WHS Spring Festival
Join us at the WHS Spring Festival on April 22, 2023, from 10am- 3pm at Wakefield High School(main parking lot). Come out to shop, play, and eat!
Shop local vendors, arts & crafts, new and used items, food vendors/trucks, and
District 27 Toastmasters 2023 Virtual Conference
District 27 Toastmasters invites you to its annual conference where you can hear phenomenal speakers, attend professional development and personal growth seminars about leadership, negotiation, communication, teamwork, and mentorship. Learn how to develop your personal story and how to improve