A removal can feel like the floor drops out from under you—financial pressure, uncertainty, and the fear that your reputation is permanently damaged. Many federal employees also worry about isolation at work, being blamed for systemic problems, or being treated differently than coworkers who made similar mistakes.
Sometimes you know other people did the same thing. Sometimes you know they got suspensions while you got removed.
In a 2009 Merit Systems Protection Board decision involving the Department of Veterans Affairs, the Board affirmed key misconduct findings—but still reduced the agency’s chosen penalty after identifying inconsistent discipline. Southworth PC did not represent any party in this matter. If you’re dealing with discipline, a proposed removal, or a career-changing investigation, cases like this can be a reminder that the penalty is not always “set in stone,” even when the agency proves some charges.
Case Snapshot
Forum: Merit Systems Protection Board (MSPB)
Case: Taylor v. Department of Veterans Affairs (112 M.S.P.R. 423)
Decision date: October 2, 2009
Employee role: Claims Assistant (GS-0998-06) at a VA regional office
Agency action: Removal based on alleged mishandling of veterans’ benefits claim documents
Bottom line: MSPB upheld key charges but reduced removal to a 30-day suspension due to disparate penalties
What Happened
According to the decision, the VA’s Office of Inspector General audited four regional claims offices and found veterans’ benefits claim documents in shredder bins. After that, the agency issued oral and written instructions about what could be placed in shredder bins and ordered an immediate halt to shredding.
When the agency found claims-related documents in the employee’s shred bin, it conducted an administrative investigation and proposed removal. The proposal included charges described as negligence affecting claims, failure to follow supervisory instructions, and destruction of claimant documents, supported by multiple specifications.
The employee appealed to the MSPB. After a hearing, the Administrative Judge sustained two charges (with some specifications) and did not sustain one charge. The Administrative Judge nevertheless affirmed the removal—without addressing the employee’s arguments about the agency’s table of penalties and inconsistent penalties compared to other employees. The employee then filed a petition for review.
What the MSPB Decided and Why
The MSPB affirmed the Administrative Judge’s findings that the agency proved the sustained charges by a preponderance of the evidence and established a nexus to the efficiency of the service. In other words, the Board agreed the agency proved enough misconduct to support discipline.
Where the Board parted ways was the penalty.
The decision explains that an agency’s table of penalties is typically a guide, not a binding cap, unless the agency has made it mandatory. The employee did not show that the VA’s table was mandatory, so the Board did not reduce the penalty merely because removal exceeded a listed range.
But the Board focused on disparate penalties—the idea that similarly situated employees should not be treated dramatically differently for the same or substantially similar misconduct. Here, the employee presented evidence that two other employees—disciplined as part of the agency’s response to the same OIG findings—were also proposed for removal, yet their penalties were mitigated to suspensions.
Under MSPB case law cited in the decision, once an employee raises a disparate penalties allegation tied to specific comparator employees, the agency must prove a legitimate reason for the difference by a preponderance of the evidence. The Board found the agency did not do that here and also found the agency effectively imposed a more severe penalty for the same misconduct without notice of a policy change.
Result: the MSPB reduced the removal to a 30-day suspension, ordered the agency to cancel the removal, restore the employee, and address back pay, interest, and benefits consistent with the order.
Why This Matters for Federal Employees
In the real world, discipline often happens in messy environments—policy shifts, audits, changing leadership expectations, and uneven enforcement. For federal employees, that can create a painful feeling of being singled out, especially when you know coworkers were treated differently for similar conduct.
This case highlights a practical point that many practitioners emphasize: agencies have discretion, but they still need to apply discipline in a way that is reasonably consistent—especially when multiple employees are being disciplined as part of a single “event” or initiative. When comparators exist, penalty fairness can become a meaningful issue in an MSPB appeal.
It also shows why penalty arguments matter. Even when the agency proves misconduct, the Board can still scrutinize whether removal was the maximum reasonable penalty under the circumstances.
If you’re trying to understand the broader framework, a plain-language MSPB overview can be helpful. And if removal is part of your situation, resources on MSPB wrongful termination can provide context on common issues that arise.
Key Takeaways
Separate the fight over the charges from the fight over the penalty. Identify whether other employees faced similar allegations and different discipline. Collect comparator information when it exists and can be supported by evidence.
Explain why the circumstances are substantially similar when relying on comparators. Emphasize that penalty consistency is part of the Douglas reasonableness analysis. Remember that a table of penalties may guide decisions but is not always binding.
Track deadlines and procedural steps carefully, especially after a final decision.
Practical Next Steps
General information, not legal advice. If you are facing discipline, a proposed removal, or an MSPB appeal, consider the following steps:
Preserve evidence. Save proposal notices, decision letters, emails, policies, and training materials you received. Keep copies of any written instructions you were given about the conduct at issue.
Document your timeline. Write a dated timeline of key events (audit notices, instructions, interviews, proposals, decisions). Note when you learned important facts and who told you.
Identify potential witnesses. List coworkers or supervisors who can speak to workplace practices, training, access to files, or how rules were communicated. Keep witness information factual and professional.
Keep communications professional. Assume written messages may be reviewed later in an administrative record. Focus on facts, clarity, and respectful tone.
Pay attention to time limits. Deadlines can be short and strictly enforced. In this decision, the Board’s notice referenced 60-day windows for certain filings and described enforcement timing steps.
Consider getting counsel early. Review resources like the Merit Systems Protection Board (MSPB) overview and the MSPB wrongful termination page to understand the process and common issues. If whistleblowing concerns are part of your situation, you may also want to learn about Office of Special Counsel for whistleblower protection and the OSC official site.
A Word From Southworth PC Leadership
“When a federal employee is facing removal, it’s not just a job on the line—it’s stability, identity, and peace of mind. Good advocacy focuses on the facts, the process, and whether the agency’s outcome is truly reasonable.” — Shaun Southworth, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
How discipline is charged, proven, and penalized in federal service is highly procedural. In MSPB cases, the work often involves analyzing the agency’s evidence, testing whether the agency met its burden, and addressing Douglas penalty factors—including whether similar employees were treated differently.
At Southworth PC, we often help clients understand their options and prepare for each stage of the process as attorneys for federal employees—whether that means building a clean record, preparing for a hearing, negotiating a resolution, or coordinating strategy across different forums.
Some federal workplace disputes also intersect with other legal tracks. For example, when discrimination issues are present, a federal employee EEO attorney may be involved in navigating the Equal Employment Opportunity Commission (EEOC) overview, and when reprisal concerns arise, a federal employee retaliation attorney may focus on issues commonly discussed under EEOC retaliation. In other situations, employees may need guidance about prohibited personnel practices and whistleblower-related processes.
Working with federal employee attorneys can be especially valuable when the situation involves multiple moving parts: workplace conduct, comparator evidence, and potential parallel processes.
Talk With Our Team
If you’re looking for help evaluating an adverse action or an MSPB appeal, we can talk through next steps and what information matters most.
Southworth PC is serving federal employees nationwide and abroad. Use the contact form below to reach Southworth PC.
FAQ
What do MSPB Lawyers mean by “disparate penalties”?
In MSPB cases, “disparate penalties” generally refers to significantly different discipline given to similarly situated employees for substantially similar misconduct. The Board may examine whether the agency had a legitimate, evidence-supported reason for treating employees differently.
Does an agency’s table of penalties prevent removal?
Not always. This decision explains that a table of penalties is often a guide unless the agency has made it mandatory and binding. The table can still be relevant, but it may not be the deciding factor by itself.
What makes employees “similarly situated” for comparator purposes?
The MSPB looks for substantial similarity in the charges and surrounding circumstances. In this case, the Board found similarity in part because the discipline stemmed from the agency’s unified response to the same OIG findings.
Can Federal Employment Lawyers help even if the agency proves some misconduct?
Yes—because the penalty still has to be reasonable. Even where charges are sustained, the Board may evaluate whether the chosen penalty is consistent and supported under Douglas factors.
What if my case involves both MSPB issues and EEO concerns?
Some federal employees face overlapping issues—discipline plus alleged discrimination or retaliation. In those situations, it may be important to understand how the MSPB process and EEO processes can interact, and to keep your documentation organized across both tracks.
Disclaimer
This post is for informational purposes only and is not legal advice. Reading this post does not create an attorney-client relationship. Outcomes depend on the specific facts and procedural history of each matter. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.