The U.S. Court of Appeals for the Federal Circuit has found that an arbitrator erred in failing to consider evidence of post-removal events offered in mitigation of the grievant’s alleged offenses. Norris v. Securities and Exchange Commission.
Grievant was employed as a trial attorney with the SEC. He was removed from service based on three emails he sent from his SEC email account. One was sent to the Washington Post in which he identified himself as a Senior Trial Counsel and expressed certain political views, a second was sent to two supervisors and members of the support staff in which he allegedly demeaned the staff, and the third transmitted a confidential SEC report in claimed violation of SEC policies.
Grievant claimed that the conduct alleged was mitigated by his personal circumstances, including his own AD/HD, and medical conditions affecting his wife and daughter. He also presented evidence , including testimony of his psychiatrist, that since the removal his personal circumstances had improved and his conduct was unlikely to recur.
Arbitrator Daniel Winograd upheld the removal. While noting that grievant had presented a sympathetic case, the issue before him was whether the decision to remove grievant “based upon the facts known to [the Agency] at the time, was within ‘tolerable limits of reasonableness” He declined to consider post-removal events in rendering his decision.
On review, the Court of Appeals noted that the standard of review was the same as if the dispute had been heard by the Merit Systems Protection Board. The Court noted that a hearing (either before an arbitrator or the MSPB) may include new evidence regarding either the merits of the underlying claimed misconduct or the appropriateness of the penalty.
The court concluded:
Thus, we hold that where new evidence in mitigation of the penalty imposed is presented to the Board (or the arbitrator), the evidence must be considered in determining whether the agency's imposed penalty was reasonable.
In this case, the arbitrator erred in holding that "post-removal ... good conduct is not relevant to the issue before the arbitrator...." In assessing the reasonableness of the penalty imposed, the arbitrator should consider post-removal evidence that was brought to his attention.
Accordingly, the Court remanded the matter to the arbitrator for his consideration of the mitigation evidence, but left to his discretion whether, in light of all the evidence, the penalty was within the “tolerable limits of reasonableness.”