Firing or Counseling? How Does the MSPB Decide?

Will the MSPB consider an agency’s penalty imposed against an employee? Here is an example.

If an appeal is available to you as a federal employee, should you automatically use the service because it is available?

Perhaps not. Sometimes it is better to accept a decision, keep your mouth shut and just go back to work. Here is a case in point.

A Postal Service employee was fired (or “removed” to use the preferred and less harsh sounding word) from his job as a Mail Processing Equipment Mechanic. He was charged with getting paid for time he did not work and making false statements.

Here’s what happened according to the agency. Back in November 2003, Kenneth Cronk did not work from 8:45 a.m. to 11 a.m. one morning but his worksheet said that he had been working.

To make matters worse, said the agency, during an interview in November 2003, Kenneth Kronk said he had worked on the Optical Character Reader, worked on other machines, and asked a supervisor for work during the time in question. And, claimed the agency, in an interview in December 2003, Kronk falsely claimed that an agency manager told employees that they did not have to record their work assignments accurately.

The Administrative Judge hearing the case upheld the charges against the employee. But, as a magnanimous gesture, gave a bonus for having been coming to work for the past few years, having demonstrated that he was capable of productive work, and, apparently, infrequently lying to agency representatives.

These, concluded the judge, were mitigating factors. So, overturning the decision, the agency was ordered to rescind the removal and, instead, be happy with a 45 day suspension.

The decision of the judge apparently was nowhere near good enough for the employee. Instead of being fired or suspended, he thought that a written counseling session was sufficient. He filed an appeal with the Merit Systems Protection Board (MSPB) and argued that the judge did not give enough weight to his prior work record and that the evidence did not support the charges.

The Postal Service filed a cross petition and it argued that Kronk should remain fired.

In considering the evidence, the MSPB decided that the employee did not have a basis for appealing his case. The result was the Board threw out his appeal.

But, with regard to the agency’s cross petition, it decided to take another look at the decision of the Administrative Judge.

The MSPB will look at the penalty selected by an agency in a case, but the review is limited. It will review the agency’s penalty selection to decide if the agency considered all the relevant factors and exercised reasonable discretion in deciding what the penalty should be.

In determining whether the penalty was reasonable in this case, the MSPB considered the opinion of the deciding official, a plant manager. The plant manager said the employee did what he had to do in order to stay out of trouble but not much else. He also said a factor in his decision was the fact that Kronk did not show any remorse for his actions and that his performance and attitude had been marginal during his employment.

So, he concluded, removal was the best decision under the circumstances. Despite the employee having worked there for a number of years without any prior discipline actions, and because the supervisor no longer had an expectation that Kronk would do the work expected of him, removal was the best action for the agency to take.

The Board bought that argument and concluded that the agency’s decision to fire the employee was reasonable. So, instead of a 45-day suspension, or a written counseling session, this Postal Service worker is no longer working for the agency.

In all likelihood, the agency would have appealed the decision regardless of the employee’s decision to appeal. But, in this case, an objective review should have led him to the conclusion to go back to work and stay out of trouble until he could retire.

Kenneth Kronk v. US Postal Service, CH-0752-04-0361-I-1, January 3, 2005

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47