The appellant was employed by the agency as a Building Equipment Mechanic at the agency’s Miami, Florida, Processing and Distribution Center.
The appellant petitioned for review of an initial decision that affirmed his removal on a charge of improper conduct, i.e., possessing and consuming an illicit substance (marijuana) while attending a training course in Norman, OK. The appellant was 1 of 5 USPS employees who the agency’s Office of Inspector General found had used marijuana on the grounds of the hotel at the training facility.
Following a hearing, the administrative judge sustained the charge, found that there was a nexus between the charge and the efficiency of the service, and found that the penalty of removal, “while harsh,” was not unreasonable. Regarding the appellant’s contention that he was treated disparately compared to 3 other individuals who participated in the same incident and were allegedly not removed, the administrative judge stated that he was required to review the penalty without reference to the comparators because they were not similarly situated to the appellant, in that they were not employed at the same work facility.
The Board granted the appellant’s petition for review, affirmed the initial decision insofar as it sustained the charge of improper conduct, and remanded the case to the regional office for further proceedings on the appropriateness of the penalty:
1. To establish disparate penalties, an appellant must show that the charges and the circumstances surrounding the charged behavior are substantially similar. If he does so, the agency must prove a legitimate reason for the difference in treatment.
2. In the past, whether an appellant and a comparator were in the same work unit was an outcome determinative factor; if they were not, the Board would not find a disparate penalty. In Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), the Board stated that there must be enough similarity between both the nature of the misconduct and other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently, but that the Board will not have hard and fast rules regarding the “outcome determinative” nature of these factors.
3. Here, there appears to be substantial similarity in the conduct in which the appellant and the comparators participated. The record is not fully developed, however, as to the circumstances of the discipline imposed on the comparators and why different chains of command or other factors might justify different penalties. A remand is therefore necessary.