When you’re a federal employee facing discipline, the pressure can feel nonstop—stress at home, worry about your reputation, and the fear that one incident could derail a career you’ve built over years. It can also feel isolating, especially when coworkers keep their distance or when you’re unsure who to trust.
Sometimes you know the charges against you are serious. Sometimes you know you made mistakes. But you also know other people did similar things—and you’re the one being removed.
A May 28, 2014 decision from the Merit Systems Protection Board (MSPB) shows how the Board can sustain misconduct charges and still find removal too severe when the agency’s penalty analysis isn’t properly supported. Southworth PC did not represent any party in this matter. This post breaks down what happened in the case, what the MSPB decided, and what federal employees can learn about discipline, credibility, and penalty consistency.
Case Snapshot
Agency: Small Business Administration (SBA)
Position: GS-13 Public Affairs Specialist (described as a Regional Communications Director)
Proposed penalty: Removal
Charges sustained by the MSPB: Improper use of a government computer; lack of candor
Bottom line outcome: Removal mitigated to a 60-day suspension without pay and reduction of no more than one grade, with reinstatement to the prior position (at the reduced grade)
Decision date: May 28, 2014
What Happened
According to the decision, the agency removed the employee based on two charges:
Improper use of a government computer—supported by 22 specifications involving sending sexually oriented images and videos from the employee’s work computer.
Lack of candor—based on a response under oath during an internal investigation. Investigators asked whether the employee had received emails from a coworker “with a sexual connotation.” The employee stated under oath that he had personally not received such emails from that individual, but the agency’s investigation found otherwise.
The record described an internal agency investigation that began in early 2010 and uncovered sexually explicit material being sent and received on work computers using work email addresses in the agency’s Denver office. The agency proposed removal, a deciding official sustained the proposal, and the removal was effective March 28, 2011.
The employee appealed. After a hearing, an administrative judge sustained both charges but mitigated the removal—finding problems with how the agency handled penalty consistency information under the Douglas factors. Both sides petitioned for review, and the full Board issued the May 28, 2014 decision.
What the MSPB Decided—and Why
The MSPB agreed that the agency proved both misconduct charges by a preponderance of the evidence and that there was a nexus to the efficiency of the service.
Where the case turned was penalty reasonableness.
The Board emphasized that its role is not to choose the penalty it would impose, but to ensure management judgment was properly exercised and the penalty does not exceed the maximum reasonable penalty.
The decision discussed the Douglas framework, including the factor that looks at consistency of the penalty with those imposed on other employees for the same or similar offenses.
The key penalty issue: comparator information was withheld
The employee raised a penalty consistency argument in response to the proposed removal. The deciding official requested information about other employees disciplined as part of the same investigation. The record reflected that HR told the deciding official it would not provide the internal report or specifics of other cases, offering only a general characterization that other cases did not “rise to the level” of the employee’s case.
The MSPB agreed with the administrative judge that, under these facts, withholding requested comparator information kept the deciding official from being fully informed when making a conscientious penalty determination.
Length of service was not treated as aggravating (according to the Board)
The administrative judge also believed the deciding official treated the employee’s length of service as an aggravating factor. The Board disagreed, finding the weight of the evidence did not support that conclusion and vacating that portion of the penalty analysis.
Removal was not warranted—but the case was still serious
After weighing the record, the Board affirmed mitigation of removal to a 60-day suspension without pay, and a reduction of no more than one grade.
The decision recognized an aggravating factor (the employee interfaced with the public in his role) and also identified multiple mitigating factors, including rehabilitative potential, lack of disciplinary history, and what the decision described as an absence of clarity of notice in light of management’s tolerance of similar conduct.
The employee argued for further mitigation based on comparator penalties (including evidence about discipline imposed almost two years later). The Board considered that evidence but gave it little weight and found legitimate reasons for different penalties in the later comparator situation.
Optional reassignment was vacated
The administrative judge had also allowed the agency to reassign the employee to a vacant position for which he was qualified. The Board vacated that part of the order because it was not supported by factual findings that the employee could not perform the prior position given the sustained charges.
Why This Matters for Federal Employees
Discipline cases can be overwhelming, especially when a proposed penalty feels career-ending. This decision highlights a few realities federal employees often face:
You can lose on the charges and still have meaningful arguments about penalty. In this case, the misconduct charges were sustained, but removal was mitigated.
Consistency information matters—especially when it’s requested. If a deciding official asks for comparator information and is denied it, that can become a major issue in the Douglas analysis.
Credibility and completeness matter in investigations. The lack of candor charge here flowed from a sworn answer that the Board found left investigators with the wrong impression.
Timing and context can affect comparator arguments. The Board treated a two-year gap as a reason to view post-removal comparator evidence as less persuasive.
Key Takeaways
Recognize that penalty mitigation can be separate from whether charges are sustained. Preserve emails, notices, and investigative records connected to the agency’s allegations.
Flag penalty consistency issues early if you believe similarly situated employees were treated differently. Ask whether the deciding official had access to the information needed to weigh relevant Douglas factors.
Avoid incomplete or misleading statements during sworn interviews or investigations. Understand that comparator evidence may be evaluated differently depending on timing, roles, and chains of command.
Track what the record shows about rehabilitation potential and prior discipline.
Practical Next Steps
If you’re dealing with discipline or a proposed removal, consider a structured, evidence-focused approach:
Save and organize records. Proposal notice, decision letter, emails, attachments, investigation summaries.
Write a timeline of key events (who said what, when, and where), while details are fresh.
Identify potential witnesses who saw relevant events or workplace practices described in the proposal.
Keep communications professional. Assume emails and texts may become exhibits.
Document comparator information you already have (job titles, duties, supervisors, discipline outcomes), without speculating beyond what you can support.
Pay attention to deadlines. In this decision, the notice sections discussed time limits for further review and for attorney fee motions in that particular case.
Consider speaking with counsel to understand process options and how to present mitigation in a clear record.
A Word From Southworth PC Leadership
“Discipline cases are stressful, but the record matters—especially when removal is on the table and penalty factors like consistency and rehabilitation potential are in play.” — Lydia Taylor, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
Federal employment attorneys often help federal employees make sense of what the agency must prove, what evidence supports (or undermines) the charges, and how penalty factors are evaluated in an MSPB appeal.
In many cases, practitioners focus on practical preparation: identifying disputed facts, building mitigation evidence, and getting ready for hearing testimony. Counsel can also assist with strategy when the stakes include removal, suspension, or a reduction in grade.
When a case involves an agency removal, the issues sometimes overlap with what people informally call MSPB wrongful termination—meaning a disputed decision to take an employee out of federal service. (The exact claims and procedures depend on the facts and posture of the case.)
The decision here also referenced Title VII concepts in discussing how a Douglas penalty consistency argument differs from a Title VII discrimination affirmative defense, and it cited an Equal Employment Opportunity Commission (EEOC) appeal in a discussion about the persuasiveness of events that are separated in time.
Working with federal employment lawyers can be especially valuable when the situation involves multiple moving parts: misconduct allegations, credibility disputes, and potential penalty mitigation arguments. Depending on your circumstances, a federal employee EEO attorney may help you understand how discrimination or retaliation concerns intersect with disciplinary proceedings.
For readers who want a starting point, the EEOC Title VII statute page is one place to review the statute the decision referenced. For general MSPB information, you can also visit the MSPB official site.
Talk With Our Team
If you want to talk through a federal discipline situation with attorneys for federal employees, Southworth PC offers consultations for federal employees—serving federal employees nationwide and abroad.
Use the contact form below to reach Southworth PC.
FAQ
What do MSPB Attorneys look at when challenging a removal penalty?
They often focus on whether the agency considered relevant penalty factors and whether the selected penalty fits within the bounds of reasonableness for the sustained charges. In this decision, the Board emphasized the need for an informed, conscientious penalty determination and the importance of penalty consistency information when it is requested.
What is “lack of candor” in an MSPB case?
In this decision, the Board described lack of candor as a flexible concept that can involve failing to disclose something that should have been disclosed to make a statement accurate and complete. The Board sustained the charge based on a sworn answer it found left investigators with the impression the employee had never received sexual emails from a particular coworker.
Can MSPB Lawyers use comparator discipline to argue the penalty is too harsh?
Comparator discipline can be part of analyzing penalty consistency. In this decision, the Board found it was important that the deciding official requested comparator information and did not receive it. The Board also explained why it gave little weight to a comparator penalty imposed nearly two years later.
If my discipline followed protected EEO activity, what should I know?
This MSPB decision cited an EEOC case in a discussion about how a long time gap can weaken the persuasiveness of timing-based arguments in other contexts. Some employees also look for resources on EEOC retaliation when protected activity is part of the narrative. If retaliation for protected EEO activity is part of your situation, a federal employee retaliation attorney can help you think through how to document events and present a coherent timeline.
Should I speak with a federal employee EEO attorney about hostile work environment concerns?
The decision describes an internal investigation that began after an allegation that a coworker was creating a hostile work environment in an agency office. If your concerns involve discrimination issues, you may want to talk with a federal employee EEO attorney about the options available in your circumstances.
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 evidence in each case. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.