A Pine Bluff Arsenal security guard, fired for assaulting a co-worker, failed to convince the Federal Circuit Court of Appeals that the Army’s penalty was too harsh. (Cosen v. Department of the Army, C.A.F.C. No. 2007-3299 (nonprecedential), 2/15/08)
Mr. Cosen had a satisfactory work record until he was charged with assaulting a fellow security guard. According to witnesses, the incident lasted about a minute, the female co-worker was not injured, and Cosen later apologized for his actions. However, citing its “zero tolerance” policy for violence in the workforce, the Army fired Cosen.
On appeal to the Merit Systems Protection Board, Cosen blamed his co-worker for his behavior. He claimed that she had tried to cause problems in his marriage, he got mad, and this is why he assaulted her. He argued that charging him with violence was “overstated” because the incident did not last long, he only grabbed her collar, she did not react as if she felt threatened, and eyewitnesses did not believe his actions to be “serious misconduct.” (Opinion, p. 3)
Cosen also argued that the agency table of penalties called for reprimand up to a 30-day suspension for the first incident of hitting, pushing or the like without causing injury. He tried unsuccessfully to convince the MSPB that his penalty should therefore be mitigated to a 60-day suspension at most. (p. 3)
The Army responded at the MSPB that Cosen was aware of the zero tolerance policy and that all employees had received a written warning that a first offense for violence could result in removal. Further, the agency pointed out that he was the instigator, there was no provocation for his actions, and that MSPB precedent gives an agency discretion to exceed its table of penalties. The Pine Bluff Arsenal Director of Law Enforcement Security testified at the Board hearing that Cosen was a security guard and that his violent action, even though of brief duration and not causing actual injury, had “permanently undermined the agency’s confidence in his ability to exercise sound judgment and control in emergency situations.” (p. 5)
The MSPB, recognizing that Cosen’s removal exceeded the table of penalties, nevertheless sustained the agency’s exercise of discretion to remove him. His separation was warranted “in light particularly of the agency’s zero-tolerance policy and the special responsibilities of security guards in emergency situations.” (p. 4)
The appeals court has now affirmed the MSPB. The court states that it will not interfere with an agency’s determination on penalty: “Penalty decisions are judgment calls best left to the discretion of the employing agency. The presumption is that government officials have acted in good faith.” (p. 5, citations omitted)
While acknowledging that the agency has the burden to support penalties that exceed its normally permissible range, the court holds that in this case Army met that burden. Mr. Cosen’s removal is upheld. (p. 5)