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Miskill v. Social Security Administration

United States Court of Appeals, Federal Circuit

July 20, 2017

JUDITH MISKILL, AFGE LOCAL 1923, Petitioners
v.
SOCIAL SECURITY ADMINISTRATION, Respondent

         Petition for review of an arbitrator's decision in No. BW-2014-R-0004 by Jonathan E. Kaufman.

          Thomas J. Gagliardo, AFGE Local 1923, Baltimore, MD, argued for petitioners. Also represented by Debra D'Agostino, The Federal Practice Group Worldwide Service, Washington, DC.

          Meen Geu Oh, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Elizabeth M. Hosford; Kathleen Louise Henley Petty, Office of the General Counsel, United States Social Security Administration, Baltimore, MD.

          Before O'Malley, Hughes, and Stoll, Circuit Judges.

          Hughes, Circuit Judge.

         Judith Miskill challenges an Arbitrator's award sustaining her removal by the Social Security Administration for violations of the Agency's time and attendance policy. Because the Arbitrator's decision is not in accordance with law, we vacate and remand.

         I

         Ms. Miskill was employed as an Information Technology Specialist with the Social Security Administration (the Agency) for more than 14 years. On August 16, 2013, Larry Schwab, Ms. Miskill's first-line supervisor, proposed to remove Ms. Miskill for violations of the Agency's time and attendance policy between July 1, 2011 and June 28, 2013. Mr. Schwab charged Ms. Miskill with: 1) Extending Lunch Period and Break Periods; 2) Failure to Accurately Record Arrival Times; 3) Failure to Accurately Record Departure Times; and 4) Receiving Overtime Pay or Compensatory Time Off When Ineligible. On September 25, 2013, Assistant Associate Commissioner Dan Parry sustained all four charges against Ms. Miskill and removed her from Federal Service.

         On November 6, 2013, the American Federation of Government Employees (the Union) submitted a grievance on behalf of Ms. Miskill asserting that the removal "violated the just cause, progressive discipline and warning and counseling provisions contained in Article 23, Section 1, the timeliness provisions of Article 23, Section 2 and the requirements of Douglas v. Veterans Admin., 5 MSPR 313 (1981) . . . ." J.A. 302. On December 3, 2013, after Executive Officer Don Henry denied the grievance, the Union invoked arbitration.

         In preparation for the arbitration hearing, Ms. Miskill requested the turnstile records and time reports of the eight other individuals within her component at the Division of Network Engineering (DNE) between July 1, 2011 and June 28, 2013. The Agency provided the records to her in August and November 2014. Those records were analyzed by Candace Dayton, a Certified Public Accountant, Certified Product Examiner, and Certified Information Technology professional. J.A. 132. Based on those records, Ms. Dayton concluded that the eight other DNE employees had committed the same or similar violations as Ms. Miskill, yet not one of these eight employees was investigated or charged with misconduct. Specifically, Ms. Dayton found that: (1) six DNE employees had more error minutes than Ms. Miskill for inaccurately recording lunch and break periods; (2) four DNE employees had more error minutes than Ms. Miskill for inaccurately recording their arrival time; (3) four DNE employees had more error minutes than Ms. Miskill for inaccurately recording their exit time; and (4) one DNE employee had more error minutes than Ms. Miskill for inaccurately recording overtime. Ms. Dayton concluded that five employees had more overall error minutes than Ms. Miskill.

         Ms. Dayton's analysis was provided to the Agency on June 17, 2015. The Arbitrator held a hearing on the merits on September 2, 2015. The Arbitrator received into evidence Ms. Dayton's analysis showing the time and attendance discrepancies of the eight other DNE employees. Based on this evidence, Ms. Miskill argued that the penalty of removal was too harsh when "eight other comparators, employees working within DNE, also engaged in similar misconduct . . . but had not been disciplined." J.A. 4. At the end of the hearing, the parties stipulated that the comparator employees were under investigation for potential violations of the Agency's time and attendance policy, but had not yet been charged with any misconduct. J.A. 196-97. On December 19, 2015, the Arbitrator sustained Ms. Miskill's removal after finding that "the eight comparators were [not] similarly situated to [Ms. Miskill] because, based on a stipulation of the parties, the possible disciplinary action regarding these other employees is still pending an investigation." J.A. 4.

         Ms. Miskill appeals. We have jurisdiction under 5 U.S.C. § 7121(f) and § 7703(a).

         II

         Federal employees who are also union members may challenge removal either by direct appeal to the Board or through arbitration (with exceptions not applicable here). 5 U.S.C. § 7121(e)(1). We review an arbitrator's decision under the same standard of review that is applied to decisions from the Merit Systems Protection Board. Id. § 7121(f); Johnson v. Dep't. of Veterans Affairs, 625 F.3d 1373, 1376 (Fed. Cir. 2010). Thus we must affirm the decision of the arbitrator unless it is: "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) ...


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