Josh F. Bowers, P.C. Attorney at Law
 
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NOW THIS IS MITIGATION

Federal Labor & Employee Relations Update, April 2002.

Finding the deciding official "considered as aggravating factors several things that should have been considered mitigating factors and considered other things that should not have been considered at all," the Board determined removal was beyond the bounds of reasonableness-way beyond.

The appellant violated a safety rule when he got out of an agency vehicle and left the motor running. The vehicle backed into a guardrail. Citing the seriousness of the offense the possibility of injury or loss of life resulting from such a violation as well as the potential harm to its reputation, the agency determined removal was warranted. The AJ agreed.

The Board noted the deciding official appeared to view the appellant's 13 years of service as an aggravating factor. In Shelly v. Transportation (DE1221950385W3) the Board rejected the "illogical" notion that the longer an individual works for the government the more likely a single misstep will be fatal to his career. Length of service is a mitigating factor and the appellant's 13 years of successful performance with no discipline or safety violations should have worked in his favor, the Board declared.

The deciding official testified he considered the fact that the appellant had been injured several times -e.g., bitten by a dog, slipped on ice. He admitted he didn't know the particulars of these incidents. The Board noted that none of these incidents was mentioned in the proposal letter and the appellant had no opportunity to respond to their use. Can't be done, the Board ruled, citing Coleman v. Air Force (DA0752940204I1).

The deciding official also noted the appellant had taken new medication on the day incident, but had not advised the agency of this. That was another aggravating factor. Wrong again, said the Board. The appellant had no idea the medication would impair his judgment, nor did he begin his work day in an impaired state. The Board explained it has often held the use of a prescription drug played a part in the charged misconduct can be a significant mitigating factor. The Board-imposed penalty: a five day suspension.

Kevin Wentz v. Postal Service, PH0752010009I1, 3/13/02.

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1100 Wayne Avenue Suite 900
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(301) 565-0090


 


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