In February 2006, the Federal Circuit sent a case back to the Merit Systems Protection Board.
In this case, the agency (GSA) fired an appellant from his GS-8 Police Officer position based on charges of deliberate refusal to carry out assigned duties and making a threatening statement. On appeal, the administrative judge (AJ) sustained the charge of deliberate refusal to carry out assigned duties, but reversed the charge of making a threatening statement.
The AJ independently assessed the Douglas factors and determined that removal was a reasonable penalty for the proven misconduct. (See How Not to Fire a Federal Employee)
The remand back to the MSPB was based on the issue of whether removal was warranted when only one charge was upheld.
The court’s decision instructed the Board that if it finds that the agency would have imposed a lesser penalty in a removal case if only one charge was sustained, then the MSPB was to give the agency the chance to institute that lesser penalty. “On the other hand, if the Board finds that there is no indication in the record that the agency would have imposed a lesser penalty if it had considered only the sustained charge, the Board may uphold the penalty imposed if it concludes that the penalty was not in excess of the maximum reasonable penalty for the sustained offense.”
The Board followed through as directed by the court. After its review, the MSPB upheld the initial decision as it had been modified.
It noted that the agency’s decision letter included a statement suggesting that the agency viewed the second charge, which was not sustained, as more serious than the first charge, which was sustained. However, the deciding official did not address the second charge at the hearing, and it was clear from his testimony that the agency would have removed the appellant based on the single sustained charge. The Board further found that removal was a reasonable penalty in light of the relevant Douglas factors.
In effect, the firing of the GS-8 police officer is upheld for deliberately refusing to carry out assigned duties. Zwagil v. GSA, PH-0752-04-0421-M-1 (August 9, 2006)
