Miskill v. Social Security Administration

Summary

The United States Court of Appeals for the Federal Circuit reviewed an arbitrator’s decision sustaining Judith Miskill’s removal from the Social Security Administration for time and attendance violations. The court held that the arbitrator improperly categorically excluded other employees under investigation from consideration as comparators in evaluating disparate penalties under the Douglas factors. The court vacated the decision and remanded for further consideration of comparator status and penalty consistency.

Holdings

1. The collective bargaining agreement did not require that all evidence supporting an issue be presented during the grievance process. Because Miskill's grievance asserted that the Agency failed to comply with the Douglas factors, she sufficiently raised the issue of disparate treatment, and the arbitrator properly considered the comparator evidence.
2. An employee's status as the subject of an ongoing investigation is one factor in determining whether the employee is similarly situated, but it is not a categorical bar to comparator status. The arbitrator erred by excluding the eight employees solely because their possible discipline remained under investigation.
3. If the arbitrator determines that any or all of the eight DNE employees are appropriate comparators, the arbitrator must reopen the record and determine whether the penalties imposed on those employees were consistent with Miskill's removal penalty.

Questions Presented

1. Whether the collective bargaining agreement barred the arbitrator from considering comparator evidence because Miskill had not presented that supporting evidence during the grievance process.
2. Whether the arbitrator applied an incorrect categorical rule by excluding employees under investigation from consideration as similarly situated comparators in evaluating the consistency of Miskill's removal penalty.
3. What proceedings were required on remand to evaluate the comparator evidence and consistency of penalties.

Disposition

vacated