Miskill v. Social Security Administration, 863 F.3d 1379

Background

Judith Miskill, an SSA IT specialist, was removed in Sept. 2013 for time-and-attendance violations covering July 2011–June 2013; removal sustained by agency management.
The Union grieved and invoked arbitration; grievance alleged lack of just cause, failure to follow Douglas factors (consistency of penalties), and other contractual violations.
Before arbitration Miskill obtained turnstile/time records for eight coworkers in her Division of Network Engineering (DNE). An expert (Dayton) analyzed those records and concluded several coworkers had equal or greater errors but were not disciplined.
At arbitration the parties stipulated the eight coworkers were under investigation but had not been charged; the Arbitrator excluded them as comparators solely because investigations were pending and sustained Miskill’s removal.
Miskill appealed to the Federal Circuit under 5 U.S.C. § 7121(f); the court reviewed de novo whether the arbitrator’s legal conclusions and application of Douglas were correct.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the arbitrator could consider comparator evidence introduced at arbitration though not raised with the agency earlier	Miskill: her grievance invoked Douglas; that raised disparate-treatment issue so arbitrator could consider comparator evidence introduced later	SSA: CBA limits arbitrator to issues raised at last grievance step; comparator defense was not raised earlier so evidence was barred	Held: Arbitrator permissibly considered comparator evidence; raising Douglas in the grievance sufficiently raised disparate-treatment issue so CBA did not bar later evidence
Whether employees under investigation can ever be used as comparators for disparate-penalty analysis	Miskill: coworkers under investigation who committed similar misconduct may be valid comparators	SSA: Pending investigations bar comparator status; not similarly situated	Held: Categorical exclusion was legal error; investigatory status is a factor but not a per se bar; arbitrator must assess comparability on the facts
Whether the arbitrator properly applied Douglas consistency factor given the comparator evidence	Miskill: Douglas requires comparing penalties and the agency offered no legitimate reason for differential treatment	SSA: Investigation status justified different treatment; process ongoing	Held: Arbitrator erred by not evaluating comparators on the merits; remand to reopen record and evaluate penalty consistency (and shift burden to SSA if disparities shown)
Appropriate remedy for arbitrator s error	Miskill: vacate and remand for factual review and penalty comparison	SSA: uphold arbitration award	Held: Vacated and remanded; arbitrator must reassess comparators, reopen record if needed, and apply Douglas factors; if disparities found SSA must justify the difference

Key Cases Cited

Johnson v. Dep’t of Veterans Affairs, 625 F.3d 1373 (Fed. Cir.) (standard of review for arbitrator decisions under §7121(f))
Garcia v. Dep’t of Homeland Sec., 780 F.3d 1145 (Fed. Cir.) (interpretation of collective-bargaining agreement reviewed de novo)
Norris v. Sec. & Exch. Comm’n, 675 F.3d 1349 (Fed. Cir.) (arbitrators must review de novo agency adverse-action decisions and Douglas factors)
Douglas v. Veterans Administration, 5 M.S.P.R. 280 (M.S.P.R. 1981) (list of factors for assessing penalty reasonableness, including consistency with penalties imposed on others)
Lewis v. Dep’t of Veterans Affairs, 111 M.S.P.R. 388 (M.S.P.R.) (agency burden to justify disparate treatment)
Lewis v. Dep’t of Veterans Affairs, 113 M.S.P.R. 657 (M.S.P.R.) (definition of similarly situated comparator)
Fearon v. Dep’t of Labor, 99 M.S.P.R. 428 (M.S.P.R.) (evidence of undisciplined similarly situated employees supports disparate-penalty claim)
Chavez v. Small Bus. Admin., 121 M.S.P.R. 168 (M.S.P.R.) (discussion of when post-penalty evidence may be considered for consistency analysis)