Making a Defensible Discipline Decision – What Every Federal Manager Absolutely Needs to Know

By on June 5, 2006 in Current Events with 0 Comments


Part II: Dealing With the Paper
(To read part I of this article, click here.)

Let’s review, there was a rule and the employee both knew the rule and broke it; you can prove all of this; a fair, complete and timely investigation took place; and an opportunity was afforded to the employee to tell his/her side of the story. So now what?

The paper (reprimand, proposal, or decision) has four necessary parts.

1. Statement of what you’re doing.

This is telling the employee what’s happening and opens your letter/memo. It will probably look like this:

“This is to reprimand you for…” or “This is to propose your suspension for 3 days for…”

2. Statement of the employee’s misconduct.

This is called a charge and is important to get right. It should be very simple and direct. In the leave case in Part 1, it might be “Failure to follow leave instructions”. After you state the charge, you get to say how you got there. These are facts and are called specifications.

For example:

On Friday, May 5, 2006, you did not report to work nor did you call in. When you returned to work on Monday May 8, 2006, you said that you didn’t feel well and that you decided to stay in bed all day. You further stated that you fell asleep and forgot to call in. On March 2, 2006, you were provided with a memorandum from your supervisor, Ms. Andrea Timely, Subject: Leave Restriction Notice. (attached) That memorandum advised you tat any absence must be called in no later than 1 hour after the beginning of your work day and that you were to call MS. Timely directly. By your own admission you did not do so.

I hope it’s obvious that you must be able to prove through documents and witnesses that what you’re claiming is true.

3. State why what the employee did was a problem.

While only in major adverse actions such as suspensions or removals, must you demonstrate that the penalty for the employee’s behavior was “for such cause as promotes the efficiency of the service”, it’s a good idea that every action you take be for a good reason directly affecting the mission, effective operations, employee morale, etc.

In lesser discipline and outside the Federal sector, the term used is “for just and sufficient cause”. Be direct and clear. State what actual or potential problems were caused by the behavior and why they are problems.

In the leave case we’ve been working, such a statement might read:

By failing to call in, you not only created a situation in which the work you were scheduled to perform might not have gotten done on time but another employee had to be taken off the job to meet the deadline that was your responsibility to meet. Your misconduct also had a negative effect on the overall accomplishment of the unit’s work as the supervisor had to take time to reschedule your work and find someone else to do it. In addition your failure to call in and the excuse you gave undermined my confidence not only in your responsibility for accomplishing your work but in your commitment to the team we all have worked hard to create in… This misconduct on your part can not be tolerated.

You get the idea. All of the elements we’re discussing are important but this is arguably the most important. If you don’t have a good reason, don’t do the action.

4. State why you chose the penalty you did.

You get to decide the penalty for the misconduct but you also get to explain why you picked the one you did. Take a minute and Google (now a verb) “Douglas Factors” and you’ll find twelve factors that MSPB laid out in its first years of operation (called “Douglas” because that was the name of the lead case MSPB used to lay them out) to be weighed in setting a penalty. I think they are helpful in setting any penalty and in deciding whether to do any action at all.

You don’t have to cite them all although some do. What’s important is that you say clearly what you considered and why. Internalize the Douglas factors and you can’t go wrong. As a matter of fact, the better you understand the Douglas factors, the better witness you’ll make.

What haven’t we talked about?

• We haven’t addressed “progressive discipline” directly but Douglas will get you there.
• We haven’t talked much about format but that’s what you pay the employee relations people and lawyers to do.
• We haven’t discussed the agency “table of penalties” or more politically correctly termed “schedule of offenses and remedies” by some. The Douglas factors will get you here as well but remember it is only a guide and if circumstances warrant a greater or lesser response.

The title of this says in part “What a Manager Absolutely Needs to Know”. This and Part 1 are the basics. Some thoughts:

  • If people tell you that you have to decide a certain way, read the case law yourself. I made it a habit to give the managers I advised copies of the decisions of MSPB or EEOC or whoever that addressed the issues that were the subject of their pending decision. If an advisor is reluctant to give you a decision, question the advice.
  • Remember, the decision is yours. Sign nothing you don’t fully agree with. If someone tells you a certain phrase is required in every action, ask to see where it says that.
  • Believe in the action or don’t take it. You can’t hide your disagreement on the witness stand. If someone in your chain of command wants a certain action proposed or decided and you disagree, let them do it. Easy for me to say, Huh? Believe me, raising your doubts early is way better than getting a decision reversed. You took an oath on your first day of Federal service. It’s still good today.
  • None of this is easy, none of it is fun. A manager I advised and respected greatly had to sign the removal letter of an employee who made a big mistake. The employee had also done a great many good things for the agency. The manager asked me if this (the removal) was the right thing to do. My answer: “It’s your decision not mine to make, and for that I’m thankful every day.”

As always, the views expressed are mine and mine alone.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.


About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.