Lights, Hammer, Action!

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By on July 11, 2019 in Court Cases with 0 Comments
Light switch with red plate on a white concrete wall
U.S. Air Force photo by Staff Sgt. Kenny Holston

Here’s a case that illustrates how easy it is to get fired over a petty dispute with a co-worker. (Mogil v Department of Veterans Affairs (CAFC No. 2018-1673 (nonprecedential) 5/1/19))

For some nine years, Mogil was an engineering technician with the Department of Veterans Affairs (VA) at its Medical Center in Minneapolis, Minnesota. His problems stemmed from sharing an office with a co-worker (“Tony”). They developed a funning feud over the lights. Simply put, Mogil wanted the lights on at all times, and Tony wanted some of them kept off because they caused glare on his computer screen and led to his discomfort. Mogil’s boss offered to move him to another cubicle but he passed on the offer, choosing to continue to wage the battle over the lights with Tony. (The case doesn’t mention whether the boss offered to move Tony.)

In any event, the two men worked out a compromise for a time that allowed Tony to adjust the lights when Mogil was away from the office. For reasons unexplained, Mogil decided that he wanted all the lights on at all times, including when he was not there. A few different times, he taped the switches in an on position to try to get his wish that the lights be left on. The boss had to intervene numerous times, and finally she ordered them to just leave the lights on and “get along.” (Opinion pp. 1-2)

The next day Mogil left the office and returned to find the lights off. He “snapped” and took a hammer to the light switch. This ended up disabling the lighting in not only his office, but several others. (p. 3)

The agency just snapped at that point and initiated adverse action leading to Mogil’s removal for damaging government property, despite his reply indicating he was really sorry and that he apologized for his actions. (p. 3) 

The Merit Systems Protection Board upheld VA’s removal of Mogil and the appeals court now upholds that decision.

Mogil faced the reality of the new adverse action powers vested in VA under the VA Accountability and Whistleblower Protection Act of 2017. (“Act)  

The appeals court weighs the effect the Act had on taking adverse actions against VA employees under Chapter 75 of Title 5. For example under Title 5, the MSPB has authority to mitigate the agency’s penalty if it finds it “unreasonable.” The new Act gave the VA more discretion to remove its employees and required that the MSPB give the VA more deference in these matters, which took away the Board’s “ability to mitigate the penalty imposed” as long as the decision is supported by substantial evidence. In other words, if the evidence is there, then the Board must uphold the VA’s decision and “shall not mitigate” the prescribed penalty. Where the MSPB typically ensures that the “Douglas factors” are weighed in deciding the penalty, this is now “immaterial” with regard to VA adverse action decisions. (p. 5)

In this case the Board administrative judge found that the evidence was there to prove the misconduct—in fact Mogil admitted he damaged the property. He rejected Mogil’s argument that the VA Act required the Board to review if the penalty was supported by substantial evidence. Mogil also tried to argue that the Act did not excuse VA from weighing the Douglas factors. The VA disagreed with Mogil’s arguments, the MSPB judge disagreed with them. He concluded that for VA cases “the Board can only review whether substantial evidence supports the VA’s finding that the misconduct occurred.” (p. 6)

The appeals court dances around the effect of the new VA Act, but ultimately reaches the same result in upholding Mogil’s removal. Note this wording in its decision: “We need not consider, however, whether the VA’s interpretation is proper here because any error in interpreting [section] 714 [of the Act] was harmless.” (p. 7)

The court talks about, okay the VA did not weigh the Douglas factors, but Mogil did not try to explain how that would have changed the decision to remove him. Besides, the court points out that the government’s decision letter addresses why it chose the removal penalty as appropriate, thus contradicting Mogil’s argument. Further, the court notes, while VA viewed weighing Douglas factors as “immaterial,” the agency “nonetheless considered such evidence in upholding the removal decision.” (p. 8) 

In spite of the dancing around just how impactful the new Act is on VA adverse actions, the court concluded that in this case what the agency did passed the requirements. But here’s the court’s last caution: “We leave for another day the statutory interpretation issue with constitutional implications.” (p. 9)

Hmm. Where the MSPB is confident that the Title 5 tide has shifted for VA adverse actions thanks to the new Act intended to streamline the process, the appeals court is clearly hemming and hawing. In any event Mr. Mogil picked the wrong time to “snap” on this clearly petty office dispute.

Mogil v. VA 2018-1673

© 2019 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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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.

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