The Good News: Fed Circuit Offers Reminder to Charge Carefully

By Ann Boehm, July 18, 2023

An agency lost a removal case before the Federal Circuit this month. In Williams v. Federal Bureau of Prisons, an arbitrator sustained the employee’s removal, but the Federal Circuit vacated and remanded the arbitrator’s decision because the arbitrator failed to properly analyze the Douglas factors. Williams, Case No. 2022-1575 (Fed. Cir. July 6, 2023).

If you just read that quick summary of Williams, the decision seems to be pro-employee and bad news for agencies. But here’s the thing: The decision is completely consistent with years of MSPB and Federal Circuit precedent. And the lesson agencies should learn from it is – charge carefully, or have your penalty at the mercy of arbitrators, administrative judges, the MSPB, and the Federal Circuit.

To make sure our good friends of FELTG don’t face a similar situation, let’s review what happened in Williams.

Ms. Williams started work as correctional officer at the Federal Correctional Complex in Beaumont, Texas (FCC-Beaumont) on March 4, 2018. Before that, in January 2016, she met Alex Hayes. They were engaged in July 2018, and had a child together in September 2018.

So, what’s the big deal here? Turns out Mr. Hayes had been in Bureau of Prisons (BOP) custody in his past – from June 2005 to July 2013 – and on supervised release until July 15, 2018. He even spent some time at FCC-Beaumont. The problem for Ms. Williams was the BOP Standards of Employee Conduct prohibit employees from becoming involved with inmates or former inmates, and if they do engage in such improper conduct, they must report it in writing to the BOP. Former inmate, as defined by BOP, means less than one year has elapsed since release from BOP custody or supervised release. Mr. Hayes fit into this category until July 2019.

BOP was ahead of Ms. Williams in knowing about Mr. Hayes’s former inmate status. In May 2019, they placed her on administrative reassignment, and Internal Affairs investigated her improper contact with a former inmate and failure to report the contact. Ms. Williams knew Mr. Hayes had been incarcerated but did not know about his BOP past until she heard rumors. She questioned Mr. Hayes. On June 3, 2019, she learned he had been in Federal custody. She reported this to BOP the next day.

[Quick aside here. It just seems to me if you are engaged and have a child with someone, some of your conversations might get into, “Hey, where have you lived in the past?” “Ever been in Beaumont before?” “Any chance you have ever been in Federal prison — for 8 years or so?”]

The Internal Affairs investigation, which ended in July 2019, found Williams had engaged in improper conduct with a former inmate and failed to timely report the contact. On Feb. 5, 2020, the BOP issued a notice of proposed removal based on two charges: (1) improper contact with a former inmate; and (2) failure to timely report. The final decision removing Ms. Williams was issued on April 22, 2021.

Ms. Williams challenged her removal before an arbitrator. The arbitrator sustained the charge on improper contact but did not sustain the charge on failure to report. In not sustaining the failure to report charge, the arbitrator explained that Ms. Williams immediately reported the contact as soon as she found out about Mr. Hayes’s past.

I’m sure you astute FELTG readers know, as the Federal Circuit reminded us in Williams, “when an arbitrator sustains fewer than all the agency’s charges, the arbitrator ‘may mitigate to the maximum reasonable penalty’ for the sustained charges unless the agency has indicated it desires a lesser penalty be imposed on fewer charges. Williams at 4 (citing Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999)). The BOP had not indicated it desired a penalty less than removal if only one charge was sustained, so the arbitrator should have independently analyzed the Douglas factors to determine a reasonable penalty for the one sustained charge. [Learn more on this subject. Purchase a recording of FELTG’s 60-minute training The Role of the Douglas Factors in Arbitration.]

The arbitrator did not do this, even though he indicated it would be just and fair to change the removal to a long suspension. He also failed to independently analyze the Douglas factors and deferred to the deciding official’s Douglas analysis. Because the arbitrator misunderstood and misapplied the law, the court vacated the removal and remanded for the arbitrator to independently analyze the relevant Douglas factors to determine the maximum reasonable penalty. What can agencies take away from this case?

• Charge properly. Remember that you must prove a charge by preponderance of the evidence, or 51 percent.
• If you think there is a chance any of your charges may fail, the Douglas factor penalty analysis should mention an alternative penalty in that situation.
• Remember that arbitrators often have very little experience with the Federal disciplinary process. Advocates should do their part to educate them.

Williams is not a new case that is averse to agencies. It is simply a good reminder of how things work in discipline. And that’s Good News! Boehm@FELTG.com