Table of Penalties is a Guide Court Tells Fired Fed

A federal employee can sometimes challenge a disciplinary or adverse action through arbitration instead of going to MSPB. That happened in this case and the employee was apparently disappointed when the arbitrator upheld his removal for inappropriate conduct. The employee then went to court to try and get the arbitration decision tossed out but the court found that a table of penalties is a guide and not binding on the agency and he remains fired.

A Senior Immigration Inspector whose termination for “Inappropriate Conduct of a Sexual Nature” was sustained by an arbitrator was unsuccessful in his bid to persuade the appeals court to overturn his firing. (Rosado v. Department of Homeland Security, Bureau of Customs and Border Protection, C.A.F.C. No. 2007-3116 (nonprecedential), 8/8/07)

Some eleven years into his employment, a female supervisor accused Rosado of sexual assault. This led to an investigation by the agency and eventually Rosado’s termination. (Opinion p. 2. For readers wondering what exactly it is that he did, join the club. The court’s decision does not go into any details.)

Rosado opted to challenge his termination through arbitration. The arbitrator held a 2-day hearing and found that five of the six specifications were proved by the agency, and that removal was a reasonable penalty, even though the agency’s table of offenses and penalties suggested that a 30-day suspension for similar offenses. (p. 2)

In his court appeal, Rosado challenged the deviation from the agency’s table of offenses and penalties, argued that the table was binding, and that the deciding official failed to adequately explain imposing a more severe penalty. He asked the court to overturn the termination and reduce the penalty to a 30-day suspension. (p. 3)

The Federal Circuit, in its decision upholding the agency and the arbitrator, had this to say about the table of penalties argument: “The content of the agency’s table of offenses and penalties clearly indicates that it is only a guide and was not meant to be binding on the agency. The description of offenses is incomplete and quite broad, and accompanied by a range of possible penalties.” (pp. 4-5) It helped the government’s case that the accompanying instructions described the table as “exemplary only, a guide, and not a set of mandatory rules.” (p. 4)

The court reasoned that the table of penalties was therefore only one of many factors to be considered in determining an appropriate penalty, and that record includes a worksheet used by the deciding official that showed she had considered the Douglas factors. Finally, given the seriousness of the charge, “there is no question that the agency’s decision to terminate Rosado was reasonable….” (p. 5)

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.