for review of an arbitrator's decision in No.
BW-2014-R-0004 by Jonathan E. Kaufman.
J. Gagliardo, AFGE Local 1923, Baltimore, MD, argued for
petitioners. Also represented by Debra D'Agostino, The
Federal Practice Group Worldwide Service, Washington, DC.
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.
O'Malley, Hughes, and Stoll, Circuit Judges.
Hughes, Circuit Judge.
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.
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.
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
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.
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.
Miskill appeals. We have jurisdiction under 5 U.S.C. §
7121(f) and § 7703(a).
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)