120-Day Suspension Upheld

By on December 20, 2006 in Current Events with 0 Comments

A Civilian Pay Technician with the Defense Finance and Accounting Service in Charleston, South Carolina, tried unsuccessfully to get the federal appeals court to overturn her 120-day suspension based on four charges. (Roach v. Department of Defense, C.A.F.C. No. 06-3241 (nonprecedential), 12/7/06) The facts are taken from the court’s decision.

Roach was charged with disrupting a meeting, insubordination, making false accusations against a supervisor and statements that caused anxiety and disruption in the workplace. Her supervisor proposed to remove Roach based on these four charges. The deciding official sustained all four charges but mitigated to a 120-day suspension.

Roach appealed to the Merit Systems Protection Board. The Administrative Judge found all four charges supported by the evidence. Roach argued harmful error and retaliation for protected union activity as affirmative defenses to the charges. However, the AJ found that she failed to prove these defenses. The AJ found the 120-day suspension reasonable.

In her court challenge, Roach argued Board error in its credibility determinations, that several witnesses had misrepresented material facts, that the Board failed to weigh new evidence she had presented to the full Board, that the Board incorrectly interpreted the collective bargaining agreement, and that the Board had denied her due process. None of these arguments held weight with the court, however.

Roach also argued that the 120-day suspension was unreasonable, pointing out that it was inconsistent with penalties imposed on another and that the government is “well aware who the employee is.”

The court points out that evidence as to what was done to this supposedly similarly-situated employee was not in the record before the AJ and, therefore, the court cannot consider it either. As to reasonableness of penalty, the court predictably stated, “We defer to the agency’s choice of penalty unless it is ‘so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.’ [Citing Zingg v. Dep’t of Treasury, 388 F.3d 839, 843 (Fed. Cir. 2006)]” (p. 5)

In what is pretty much a mantra in cases such as this, the court went on to summarize its holding: “Because the Board’s decision is supported by substantial evidence and is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, we affirm.” (p. 6)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.