George Lee v. Department of Commerce, DC-0752-22-0152-I-1

Background:

Appellant (George Lee) was removed from Federal service by the Department of Commerce for: failure to follow procedures, mishandling employee badges/credentials, misuse of a government vehicle, and mismanagement.
Most alleged misconduct occurred 2016–2019; appellant’s performance appraisals for that period were generally positive.
Agency OIG auditors testified the division Lee supervised had many cases left open for long periods and employees reported lack of basic agent training; appellant produced no corroborating training records.
Appellant argued his positive performance ratings rebut the mismanagement charge under Moretz v. Department of the Treasury.
Administrative judge sustained the removal, credited OIG testimony over appellant’s rebuttal evidence, and considered Douglas factors; appellant claimed disparate penalty/scapegoating but did not identify comparable employees.
The Board denied the petition for review and affirmed the initial decision, relying in part on Federal Circuit precedent in Valles distinguishing Moretz and confirming that positive evaluations must be considered but do not bar discipline.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether positive performance evaluations rebut a mismanagement/misconduct charge (Moretz doctrine)	Positive appraisals during charged period rebut mismanagement specifications.	Appraisals do not automatically bar discipline; evaluations must be considered but do not negate misconduct allegations.	The Board affirmed: positive evaluations were considered but did not rebut the misconduct findings; Moretz does not automatically apply.
Whether the administrative judge erred in sustaining the misconduct/specifications	Appellant argued evidence (appraisals, training hours, case closures) disproves agency assertions.	Agency relied on OIG audit and witness testimony showing open/idle cases and lack of training records.	The Board upheld the judge’s credibility findings and sustained the charges where agency evidence was credited.
Whether the penalty was unreasonable or disparate (Douglas/consistency)	Appellant claimed he was "scapegoated" and other managers avoided discipline.	Agency argued penalty consideration was proper and no similarly situated comparators were identified.	The Board found appellant failed to identify similarly situated comparators; any error in addressing disparate penalty would not change the outcome.
Whether deciding official/administrative judge failed to consider Douglas factors	Appellant claimed Douglas factors were not properly applied.	Agency showed deciding official considered Douglas factors, including service, lack of prior discipline, and positive ratings.	The Board concluded relevant Douglas factors were considered and the penalty was reasonable.

Key Cases Cited

Moretz v. Department of the Treasury, 19 M.S.P.R. 376 (1984) (Board decision: positive performance ratings can rebut a charge of failing to meet position standards where agency relies on evaluations to prove below-standard performance)
Valles v. Department of State, 17 F.4th 149 (Fed. Cir. 2021) (Federal Circuit: positive evaluations must be considered but do not categorically bar discipline for misconduct occurring during the evaluation period)
Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) (Board set forth 12 nonexhaustive factors to weigh in selecting an appropriate penalty)