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Court agrees with MSPB that grade reduction not punishment

Is a five-grade demotion from a GS-12 to a GS-7 a second punishment for a Deportation Officer who had been given a two-week suspension for lying to police after they investigated the "appearance" of a refrigerator at his home? According to opinions of the Merit Systems Protection Board (MSPB) and the Court of Appeals for the Federal Circuit, the answer is, no.

The man was an employee of the Department of Homeland Security (DHS), and worked as a Deportation Officer. In 2008, he apparently arranged to purchase a refrigerator using someone else's employee discount. He told police that it "appeared" at his home and later admitted that he had set up the deal using an employee's discount. This led to a "lack of candor" charge, which resulted in a removal action. 

He avoided the removal and instead received a two-week suspension. In his role as a Deportation Officer, he was required to testify for the U.S. Attorney's Office (AO) in court proceedings. When they found out about his disciplinary action, they notified DHS they could no longer use him as a witness.

DHS then tried to remove him for a second time, on a charge of "Inability to Perform Full Range of Duties." DHS mitigated the removal, this time by demoting him to a GS-7, in a position that apparently did not demand he testify for the AO.

He objected, claiming this was double punishment. The MSPB and the court of appeals sustained the agency's action, because the demotion was based on the AO's independent decision that they could not use him as a witness.

Given a Deportation Officer must testify for the agency, and the fact he could not perform this element of the position, his demotion was result of the AO's action, and not punishment for the original offense.

This case highlights the risk a federal employee in a sensitive position may incur for lack of candor or questionable behavior. Matters unrelated to your direct job duties may have disastrous consequence on your career.

Source: FedSmith.com, "Integrity Issues Lead to a Suspension That Leads to a Five-Grade Demotion," Susan McGuire Smith, February 20, 2014

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