OPM's proposed rules on comparator employee standard raise controversy

IN FOCUS: The comparator employee provisions in the Office of Personnel Management's proposed regulations implementing President Trump's civil service reform Executive Order 13839 would change the standard for comparator employees, fanning the flames of the debate over who qualifies as similarly situated, experts told cyberFEDS® in exclusive interviews.

OPM is proposing to adopt the narrow "Miskill test," under which an agency must provide "proof that the proffered comparator was in the same work unit, with the same supervisor, and was subjected to the same standards governing discipline." Miskill, AFGE Local 1923 v. Social Security Administration, 117 LRP 28910 (Fed. Cir. 2017).

The comparator analysis "should not tie the hands of a different deciding official at a different time or in a different context, or under different circumstances," but "each case stands on its own factual and contextual footing," OPM said in the proposed regulations. "These guidelines reflect established principles, but stress management discretion to promote efficient Government while protecting the interests of all involved."

Return to pre-Lewis standard

Former Merit Systems Protection Board Administrative Judge Richard Vitaris said "there is no question" that OPM is trying to overrule precedent that expanded the category of comparators, including Lewis v. Department of Veterans Affairs, 110 LRP 31478 (MSPB 2010).

Even though Miskill does not overturn Lewis, "OPM is trying to write into regulation the pre-Lewis standard," which required comparators to be in the same work unit and have the same supervisor, he explained.

This is a result of "a general feeling in the government that the [Merit Systems Protection Board] has gone in a crazy direction" by imposing a broad category of comparators, which is causing "cautious managers to always take the least severe penalty so that they don't get hammered in subsequent litigation," Vitaris said

As a result, pursuing the most lenient penalties "puts downward pressure throughout the government" on what constitutes a reasonable penalty, he added. To remedy this, the administration is "reading the cast for comparators very narrowly because they don't want one case -- that applies the least possible penalty -- to tie another manager's hands."

'Cherry picking' in Miskill

However, attorney Robert Erbe said that OPM "is cherry-picking one statement" out of the Miskill decision to go back to the former standard prior to the Federal Circuit case Williams v. SSA, 109 LRP 70875 (Fed. Cir. 2009) and the MSPB's decision in Lewis.

Before those cases, employees claiming they were treated more harshly than another similarly situated employee had to show they were "nearly identical," which meant the comparator and the employee had to have the same supervisor, work in the same unit, and be subjected to the same standards regarding discipline.

"It was an outcome determinative test, meaning that if they did not share any of these traits, they could not be proper comparators," he said.

In Lewis, the MSPB changed the standard to a more flexible rule by holding that in determining a comparator employee, "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."

Federal Practice Group partner Debra D'Agostino, who co-represented the employee in the Miskill case on behalf of American Federation of Government Employees, said "the Federal Circuit very plainly explained the federal government cannot single employees out as examples -- it must treat everyone who engaged in the same conduct the same."

In Miskill, the court also found that the proffered individuals were similarly situated comparators because they engaged in the same misconduct and it rejected the agency's argument that they were not comparators because they were under investigation, she explained.

Now, OPM is "seeking to twist" and "undermine" the court's holding, D'Agostino said. As a result, "an employee in an agency office in Denver might be treated worse than an employee in Washington, D.C.," which "is the opposite outcome the court advocated for, and that fairness dictates."

Miskill doesn't support narrowing

Even though OPM suggests in the proposed regulations that the Federal Circuit significantly narrowed the comparator employee analysis and returned to the MSPB's prior "nearly identical" standard, "the decision as a whole does not support this conclusion," Erbe said.

In Miskill, the Federal Circuit stressed that differences in penalties "depend on specific factual differences between those employees" and that consideration is "a case-dependent, highly factual inquiry" that is "not amendable to bright-line rules," he explained. So, the decision "as a whole does not support any claim that the court changed the standard of the comparator employee analysis."

Instead, Erbe said, Miskill supports the current MSPB's framework in analyzing comparator employees and specifically cites Lewis in support. Instead of narrowing the analysis as OPM claims, the Federal Circuit's decision "expanded comparator employees to include employees who are under investigation or who have received no discipline after committing similar misconduct," which allows employee representatives to obtain broader information in discovery or in a request for information when proving a disparate treatment claim.

Potential unfair treatment

Both Erbe and D'Agostino agreed that OPM's proposed standard could "lead to unfair treatment between similarly situated employees."

Consider Employee A, a letter carrier, and Employee B, a window clerk, who both work at the same Post Office but had two different supervisors and work in two different units. Both go to Las Vegas off-duty and improperly use their government credit card to take out $500. When Employee A receives a 10-day suspension and Employee B is removed, Employee B claims disparate treatment.

Under the prior standard and the proposed rules, the administrative judge could not allow Employee B to make a disparate treatment argument because the two employees had two different supervisors and worked in two different work units, Erbe said.

Easier to determine reasonable penalty

The proposed standard, however, could provide managers with a framework that makes determining a reasonable penalty less complicated. For practical purposes, the narrower standard helps managers who work in places that do not have access to shared discipline databases, or who have access but the database does not go beyond the bare facts and gives no indication of the circumstances that resulted in that penalty decision, Vitaris said.

Plus, managers feel that they should not be restricted by someone else's decision across the country when they don't know anything about the specific circumstances of that case. Managers believe that "you are always going to find somebody who was treated differently elsewhere," explained Vitaris.

By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau

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