The Board Mitigates Removal for Department of Defense Employee Charged with Stealing Cafeteria Food
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
Samuel King, Jr. | U.S. Air Force
In June 2014, the appellant, a Security Specialist at the Department of Defense, took an extra $5.00 worth of food from the agency cafeteria without paying for the additional food. The agency removed the appellant based on this conduct and charging a violation of 18 U.S.C. § 641. The appellant filed an appeal, denying the charge and asserting that his failure to pay for the additional food was inadvertent and a result of his type 2 diabetes. He explained that his blood sugar was low at the time, and he urgently needed to eat, causing him to not realize he had not paid for the additional food. The administrative judge upheld the charge and the agency’s penalty of removal. The appellant filed a petition for review at the Merit Systems Protection Board.
The appellant argued on appeal that the administrative judge did not adequately consider evidence and hearing testimony indicating that his failure to pay for the additional food was not intentional. Specifically, he asserted that the judge discounted his physician’s testimony that his low blood sugar and urgent need to eat may have distracted him from paying for the additional food. The Board disagreed with the appellant, stating that the administrative judge discussed the physician’s testimony in the initial decision, and it will not reconsider the factual findings of an administrative judge based only on the allegation that the judge did not give sufficient weight to the evidence. Similarly, the appellant argued that the administrative judge did not consider letters from two Federal officials attesting to his trustworthiness. The Board similarly found that, even though the judge did not discuss the evidence in her decision, an administrative judge is not required to mention all evidence in the record when reaching a decision.
The appellant also argued that the agency committed harmful procedural error and violated his due process rights by changing the statute he was charged with violating. In the proposed removal, the appellant was charged with larceny in violation of 18 U.S.C. § 661, but the decision letter stated that he was removed for violating 18 U.S.C. § 641, which states that “whoever embezzles, steals, purloins, or knowingly converts to his use . . . [any] thing of value of the United States” shall be fined or imprisoned. The Board agreed with the administrative judge’s conclusion that appellant’s due process rights were not violated because there was no evidence that citing the incorrect statute in the proposal caused the agency to reach a different conclusion from the one it would have reached if it had originally cited the correct statute.
The Board held, though, that the deciding official failed to appropriately consider the relevant Douglas factors—a list of 12 non-exhaustive factors that are relevant in assessing the penalty imposed for an act of misconduct. In particular, the Board stated that the official did not consider mitigating factors such as the de minimis nature of the theft, the appellant’s 30 years of service, and his satisfactory work record. Rather than weighing these mitigating factors, the official deemed them “irrelevant.” As a result, the Board declined to defer to the penalty determination and found that a 90-day suspension is the maximum reasonable penalty for the misconduct.
Board Member Leavitt filed a dissenting opinion expressing his view that the deciding official had properly considered the relevant Douglas factors, and that the agency’s penalty determination was within the bounds of reasonableness.
Find the full case here: Chin v. Department of Defense.
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