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When is “Removal” A Reasonable Penalty?

What will a court and the Merit Systems Protection Board consider in determing whether the firing of a federal employee is reasonable? This employee of the VA tested the system and found her firing upheld as a reasonable penalty under the circumstances.

The Department of Veterans Affairs has a zero tolerance policy for patient abuse.

This policy dearly cost a 17-year employee with no prior disciplinary record. The VA removed her from her job as a licensed practical nurse at its medical center in Biloxi, Mississippi. (Taylor v. Department of Veterans Affairs, U.S.C.A.F.C. No. 05-3187 (non precendent), 3/17/06) The charge was patient abuse and it stemmed from an incident in which Ms. Taylor, over the repeated objections and resistance of a psychiatric patient, cut his hair and attempted to shave his beard while restraining the patient.

Ms. Taylor appealed her removal to the Merit Systems Protection Board. Central to the appeal was whether the agency had properly weighed the “Douglas Factors” in determining the appropriateness of the penalty. (Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981))

The MSPB ultimately concluded that the Douglas factors had been properly weighed and that the penalty of removal was appropriate in Ms. Taylor’s case.

Ms. Taylor took her case to the Federal Circuit Court of Appeals. She did not appeal the finding of patient abuse; rather, she appealed the penalty of removal as unreasonable. (Opinion p. 1) The appeals court affirmed the MSPB decision and thus sustained the removal penalty.

The court cited two particular Douglas factors in its opinion.

It found no fault with the agency’s conclusion that as to the nature and seriousness of the offense, it was “very serious” and this weighed in favor of a strong penalty. (p. 6) The court also discussed the “consistency of the penalty with any applicable agency table of penalties,” pointing out that the VA table of penalties calls for reprimand to removal for a first offense of patient abuse.

The court further cited the agency’s Memorandum No. 00-55-00, “Protection of Patients from Abuse, which emphasizes the agency’s zero tolerance for abuse of patients by agency employees, and cautions them that proof of patient abuse can lead to removal of the employee. (p. 6)

This appeals court decision must be a bitter pill for this former employee, especially since in its initial decision the MSPB Administrative Judge mitigated the penalty to a 15-day suspension, finding that the agency had failed to properly weigh the relevant Douglas factors. (Taylor v. Dep’t. of Veterans Affairs, No. AT-0752-04-0254-I-1 (M.S.P.B. Aug. 11, 2004).

However, the full Board granted the agency’s petition for review, reversed the initial decision, and upheld the removal penalty, finding that the agency had weighed the relevant factors and that the penalty of removal was not unreasonable. (Taylor v. Dep’t Veterans Affairs, 98 M.S.P.R. 337 (2005))

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.