On April 10, 2012, the Federal Circuit issued its decision in Norris v. Securities and Exchange Comm’n, No. 2011-3129 (Fed. Cir. Apr. 10, 2012)., vacating and remanding an arbitrator's decision to sustain the removal of Mr. Norris from federal employment. The case was briefed at the Federal Circuit by Michael Kator and Adam Casner of Kator, Parks & Weiser, and argued by Mike Kator. The best take-away from the decision is that at MSPB, or at arbitration, in an adverse appealable action of a federal employee, you may present evidence of post-disciplinary good conduct in favor of mitigation. The MSPB and/or the arbitrator must consider such evidence. This is useful, for example, when an employee's misconduct may be explained by mental illness which then improves after the employee receives new treatment post-termination.

Some good excerpts:

“In this case, the arbitrator erred in holding that "post-removal . . . good conduct is not relevant to the issue before the arbitrator." Arbitration Decision, slip op. at 57 n.17. In assessing the reasonableness of the penalty imposed, the arbitrator was required to consider post-removal evidence that was brought to his attention. On remand, the arbitrator should consider the post-removal evidence submitted by Norris in evaluating the relevant Douglas factors. We express no opinion as to the weight to be given such mitigating evidence.

On remand, we leave to the arbitrator to determine whether, in light of all the evidence, the penalty of removal "did strike a responsible balance within tolerable limits of reasonableness." Douglas, 5 M.S.P.B. at 333.”

The decision is available on-line at: http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3129.pdf

– submitted by Cathy Harris

Newsletter Volume: 
Newsletter - March/April 2012
March